IRLF 


315    117 


PATENTS 


AND 


HOW  TO  MAKE  MONEY  OUT 
OF  THEM 


BY 

W.  B.  HUTCH1NSON 

H 

OF  THE   NEW  YORK  BAR 


NEW  YORK: 

D.    VAN     NOSTRAND     COMPANY 

23  MURRAY  AND  27  WARREN  STREETS 

1899 


Copyright  1899 

W.     B.      HUTCHINSON 

Patent  Attorney 
NEW  YORK 


PREFACE 


The  main  object  of  this  book  is  to  tell  how  to 
make  money  out  of  inventions  and  patents. 

It  treats  chiefly  of  the  business  side  of  inven- 
tions. Its  authors  have  had  a  large  experience 
in  matters  relating  to  patents,  and  believe  that 
a  little  honest  and  reliable  advice  as  to  how  to 
invent,  to  patent,  to  introduce,  to  sell  and  to 
protect  an  invention  will  be  appreciated  by  all 
who  have  or  are  likely  to  have  business  in  this 
line.  Nearly  all  the  literature  on  this  subject 
has  been  in  the  nature  of  text-books  on  the  law 
of  patents,  which  are  practically  of  no  use  to 
the  business  man,  or  in  the  form  of  adroit  ad- 
vertising matter,  the  object  of  which  has  been 
to  transfer  dollars  from  the  pocket  of  the 
inventor  to  that  of  the  advertiser.  It  is  a 
recognized  fact  that  many  ingenious  men  waste 
their  ingenuity  by  exercising  it  in  the  wrong 
direction.  To  such  men  it  is  hoped  this 
book  will  be  an  aid.  Others,  through  igno- 
rance of  the  nature  of  patents  and  the  proper 
method  of  procedure,  fall  into  the  hands  of 
incompetent  and  unscrupulous  attorneys  and 
fail  to  secure  that  to  which  the  law  entitles 
them,  and  so  see  a  competency  slip  from  their 
hands.  To  such  this  book,  if  followed,  will 
prove  a  blessing.  Again,  manufacturers  and 


iv  PKEFACE. 

other  business  men  often  meet  with  loss  in  pur- 
chasing patents  which  do  not  cover  the  inven- 
tions to  which  they  relate,  or  to  which  the  title 
is  in  some  way  defective.  To  these  the  book 
will  be  of  great  assistance.  Competent  lawyers 
are  often  unable  to  advise  their  clients  as  to 
practical  means  of  selling,  licensing  or  intro- 
ducing a  particular  invention.  It  is  hoped 
that  this  book  will  be  a  help  to  them.  Final- 
ly, we  commend  this  volume  to  all  people 
having  any  connection  with  patents,  and  trust 
that  the  practical  experience  which  is  herein 
embodied  may,  in  some  way,  be  a  help  to  all. 

This  book  is  not  intended  to  take  the  place 
of  an  attorney ;  it  is  not  published  to  boom  a 
patent  agency ;  it  is  not  a  collection  of  legal 
lore  and  decisions  for  the  especial  use  of  law- 
yers, but  it  is  intended  as  a  practical  guide  for 
inventors,  manufacturers,  lawyers  and  business 
men  generally  who  have  anything  to  do  with 
patents. 

We  have  avoided  text-book  form  in  this 
book  and  have  refrained  from  using  foot  notes, 
as  these,  to  the  average  reader,  are  confusing 
and  disconcerting.  The  reader  is  asked  to  take 
our  word  for  the  facts  herein,  and  as  to  matter 
of  opinion  and  advice  to  take  it  for  what  it  is 
worth. 

NEW  YOBK,  February,  1899. 


CONTENTS 


BOOK    I. 

PATENTS  GENEBAIiLY. 
CHAPTER.  PAGE. 

I.    Origin  and  Nature  of  Patents  —  Modern  Appli- 
cation of  the  Term,          .....        1 

II.  Importance  and  Value  of  Patents  —  Their  Effect 

on  Trade,  ; 5 

III.  Patents  in  the  Nineteenth  Century  — A  Few 

Hem  arks  to  Manufacturers,      ....      12 

IV.  What  is  Patentable,      ...        .        .        .20 

V.    Caveats,  ...       .       .        .        .        .27 

VI.    Who  May  Obtain  a  Patent,          ....      31 

VII.    Concerning  Patentability,     .       .        .       .       .38 

VIII.    Prior  Use,  Public  Use,  Experiments,     ,    .       .      46 

BOOK   II. 

PATENT  OFFICE  PEACTICE,   TRADE-MARKS,   COPTBIOHTS. 

I.  The  Application,    .       .       .       *  .  .  .50 

II.  Appeals,          .       .       ...  .  .  .61 

III.  Interferences,       '.       .  .     *       .  .  .  .      64 

IV.  Disclaimers  and  Eeissues,   .       .  .  .  .71 

V.    Abandoned,  Forfeited,  Bevived  and  Benewed 

Applications, 79 


vi  CONTENTS. 

VI.     Infringement,  Infringing  Inventions  and  Acts 

—  Eemedies  for  Infringement,       ,        .        .      82 

VII.    Trade-marks,  Prints  and  Labels,        .  .96 

VIII.    Copyrights,     .        .        .        .       ....    109 

IX.    Title,    Assignment,    Grants,    Mortgages    and 

Licenses,    ........    128 

X.    Foreign  Patents,    . 136 

BOOK   III. 

PATENTS  COMMERCIALLY  CONSIDBEED. 

I.    What  to  Invent  and  How  to  Invent,         .        .    140 
II.    Introduction  and  Sale  of  Patented  Inventions,      151 

,  III.    Sale  or  Promotion  by   Joint-Stock  Companies 

or  Corporations, .164 

IV.    The  Promoter,       .       .       .       .       .       .       .182 

APPENDIX. 

Forms,         •*-"    •       »       •       .       »\^  *       »    x  •       •    195 
Index *       ...    219 


PATENTS 

AND 

HOW  TO  MAKE  MOKEY  OUT 
OF  THEM 


BOOK  I. 


CHAPTER  I. 

ORIGIN  AND   NATURE  OF  PATENTS—THE 
MODERN  APPLICATION  OF  THE  TERM. 

Originally  patents  were  monopolies  and  were 
more  often  granted  to  give  the  patentee  a 
monopoly  in  large  tracts  of  land  for  commer- 
cial, mining,  manufacturing  and  general  busi- 
ness purposes,  such,  for  example,  as  the 
patents  granted  to  the  first  colonizers  in 
America  for  immense  districts  of  land,  to 
which  the  name  of  the  original  patentee  has, 
in  many  cases,  been  applied. 

Often  at  the  present  time  the  Government 
grants  to  homesteaders  and  other  persons 
patents  for  the  land  which  they  have  pre- 
empted, purchased  or  otherwise  secured.  But 
in  its  ordinary  application  a  patent  is  a  Gov- 
ernment grant  giving  an  inventor  the  exclusive 
right  to  make,  sell  and  use  his  invention  for  a 
term  of  years.  In  the  United  States  a  patent 
is  granted  for  seventeen  years. 


2  ORIGIN  AND  NATURE  OF  PATENTS. 

A  patent,  in  its  modern  acceptation,  is  not  a 
monopoly,  but  is  a  consideration  offered  as  an 
inducement  for  a  person  to  invent.  In  other 
words,  it  is  a  prize  or  reward  for  Ms  ingenuity, 
and  gives  him  the  exclusive  right  to  make,  use 
and  sell  the  invention  for  a  limited  term  in  con- 
sideration of  the  benefits  of  the  invention  to 
society. 

To  secure  a  valid  patent,  therefore,  the  Gov- 
ernment requires  by  law  that  the  inventor  shall 
file  in  the  Patent  Office  drawings  and  descrip- 
tions of  his  inventions,  sufficiently  clear  to 
enable  persons  skilled  in  the  art  to  make  and 
practice  the  invention,  so  that  at  the  end  of  the 
term  of  the  patent  the  public  can  have  access 
to  the  invention  through  the  records  and  so 
reap  the  benefits  thereof. 

As  above  remarked,  patents  were  originally 
monopolies,  but  in  the  21  James  I.,  1624,  the 
Statute  of  Monopolies,  so  called,  was  passed, 
by  which  the  granting  of  special  and  exclusive 
privileges  in  trade  were  prohibited,  but  the 
statute  specifically  excepted  "  letters  patent 
and  grants  of  privileges  for  the  term  of  one 
and  twenty  years  or  under,  heretofore  made 
for  the  sole  work  or  making  of  any  manner  of 
new  manufacture  within  this  realm  to  the  first 
and  true  inventor  or  inventors  of  such  manu- 
factures." 

This  statute  marked  the  beginning  of  modern 


MODERN  APPLICATION  OF  THE  TERM.  3 

patent  laws  for  the  protection  of  new  and  useful 
inventions. 

In  France  the  first  patent  law  was  passed  in 
1791.  In  the  United  States  the  patent  system 
has  grown  up  under  a  positive  grant  in  the 
Federal  Constitution  and  by  reason  of  Statutes, 
the  first  of  which  was  passed  in  1790,  and  others 
from  time  to  time  to  the  present  day. 

A  patent  is  wholly  a  creature  of  statute,  and 
other  nations  have  been  somewhat  slow  in  fol- 
lowing the  lead  of  Great  Britain,  the  United 
States  and  France,  and  even  at  the  present 
time  there  are  some  countries  which  have  no 
patent  law.  Nearly  all  the  civilized  nations, 
however,  recognize  the  importance  of  a  patent 
system  to  foster  and  encourage  inventions,  and, 
at  the  present  day,  there  are  patent  laws  in 
nearly  every  civilized  country. 

As  a  rule,  the  laws  are  such  that  an  alien 
may  have  practically  the  same  protection  for 
his  invention  as  a  native,  though  in  many 
countries  it  is  stipulated  that  the  invention 
must  be  worked  within  a  certain  specified  time 
or  the  patent  forfeited. 

It  is  contended  by  many  that  a  provision 
of  this  nature  should  be  made  in  the  United 
States,  so  as  to  prevent  large  corporations 
from  buying  and  controlling  numerous  patents 
for  inventions  which  are  never  marketed,  thus 
depriving  the  public  of  the  benefit  which  it 


4  EFFECT  OF  PATENT  SYSTEM. 

should  receive,  but  it  is  a  question  whether  the 
time  is  ripe  for  such  a  change. 

It  is  as  true  now  as  of  old  that  "  nothing  suc- 
ceeds like  success,"  and  it  is  a  fact  beyond  dis- 
pute that  the  patent  system  of  the  United  States 
has  brought  inventions  to  a  wonderful  state  of 
efficiency,  so  that  the  country  leads  the  world 
in  valuable  improvements. 


CHAPTER  II. 

IMPORTANCE  AND  VALUE  OF  PATENTS  —  THEIR 
EFFECT   ON  TRADE. 

Visit  an  oculist  and,  whatever  your  bodily 
ailment,  he  will  probably  tell  you  that  the  diffi- 
culty originates  with  the  eyes.  A  skilled  sur- 
geon will  likewise  conclude  that  the  supreme 
remedy  for  every  ill  is  the  knife.  So,  politic- 
ally, one  set  of  people  will  attribute  the  pros- 
perity of  the  United  States  to  its  natural 
resources,  another  to  the  policy  of  protection, 
another  to  certain  financial  systems,  and  so  on 
ad  infinitum. 

But  we  believe  it  is  a  demonstrable  fact  that 
the  patent  system  of  America  has  done  more  to 
promote  its  commercial  supremacy,  its  wonder- 
ful prosperity  and  general  well-being  than  any 
other  cause. 

The  workings  of  the  patent  system  are  quiet 
and  unobtrusive.  The  inventor  does  his  work, 
and  is,  as  a  rule,  comparatively  unknown.  He 
is  not  greeted  with  the  applause  of  the  fighting 
man  or  the  orator,  but  he  does  and  has  done 


6     IMPORTANCE  AND  VALUE  OF  PATENTS. 

more  for  the  world  than  any  other  man  or  set 
of  men. 

The  patent  system  of  America  is  more  liberal 
to  the  inventor  than  that  of  any  other  country, 
and  it  has  been  the  policy  of  the  Government  to 
do  what  it  could  to  encourage  inventions,  not- 
withstanding the  fact  that  the  agricultural 
communities  have  usually  opposed  patents  as 
being  in  the  nature  of  monopolies. 

The  men  who  have  made  American  manu- 
factures famous  and  have,  by  their  improve- 
ments, brought  the  United  States  to  the  front 
rank  as  a  manufacturing  and  commercial  na- 
tion, would  not  have  brought  out  their  improve- 
ments and  could  not  have  found  money  to 
exploit  them  were  it  not  for  the  fact  that  the 
Government  has  provided  reasonable  protection. 

People  do  not  work  for  the  love  of  working. 
It  is  not  human  nature.  There  must  be  some 
sort  of  encouragement  and  stimulus.  The  pat- 
ent system  of  the  United  States  has  provided 
this  stimulus,  and  has  opened  almost  the  only 
avenue  of  success  on  which  the  poor  man  can 
successfully  enter. 

It  is  generally  recognized  that  patent  law 
forms  an  important  branch  of  American  juris- 
prudence, still  the  real  value  of  American 
patents  and  of  the  American  patent  system  is 
appreciated  by  comparatively  few  people,  and 
few  know  the  boundless  benefits  the  world  has 


IMPORTANCE  AND  VALUE  OF  PATENTS.     7 

derived  from  the  achievements  of  American 
inventors.  Many  of  them  have  cut  niches  in  the 
temple  of  industrial  fame  that  will  last  forever. 

When  it  is  remembered  that  the  richest 
nation  in  the  world  is  now  the  United  States, 
that  her  improvements  and  manufactures  are 
fast  taking  the  lead,  and  that  the  whole  volume 
of  manufacturing  business  in  America  is  or  has 
been  based  on  patents — that  is,  that  the  articles 
made  or  the  machinery  for  making  them  are  or 
have  been  subject  to  patent — then  the  enormous 
value  of  patents  to  the  public  begins  to  be 
appreciated. 

The  principle  of  our  patent  system  was  early 
recognized  ;  for  instance,  before  the  patent  law 
of  1790  Massachusetts  granted  in  1786  a  cash 
subsidy  to  Alexander  and  Robert  Barr,  of  Scot- 
land, and  Mr.  Orr,  of  East  Bridgewater,  Mass., 
to  encourage  the  introduction  of  cotton-manu- 
facturing machinery.  This  was  done  to  carry 
into  effect  the  wonderful  inventions  of  Har- 
greaves  and  Arkwright.  Aid  was  also  granted 
later  to  Almy,  Brown  and  Slater,  who  first 
manufactured  cotton  goods  in  Rhode  Island, 
and  subsequently  the  inventor  Lowell,  whose 
monument  is  one  of  the  most  thriving  manufac- 
turing cities  in  the  Union,  made  his  first  loom, 
the  model  being  completed  in  1812.  This  he 
patented,  and  it  marks  an  epoch  in  the  manu- 
facturing history  of  America. 


8  SOME  FAMOUS  INVENTORS. 

Eli  Whitney,  whose  name  has  for  generations 
been  a  household  word,  was  a  poor  lad  ignorant 
of  the  cotton  industry,  and  yet  he  invented  the 
cotton  gin  in  1793,  which  made  it  possible  to 
prepare  cotton  cheaply  for  manufacturing  pur- 
poses, to  supply  the  previously  invented  spin- 
ning-jenny and  the  subsequently  improved 
loom,  so  that  thus  early,  through  the  aid  of 
the  States  and  the  protection  of  the  patent 
system,  was  inaugurated  an  industry  the  im- 
portance of  which  can  scarcely  be  realized. 
The  history  of  the  cotton  industry  is  substan- 
tially a  duplicate  of  all  the  other  important 
manufactures  of  America. 

The  names  of  McCormack,  Heines,  Ketchum, 
Manny,  Wood  and  others  are  familiar  wherever 
mowing  and  reaping  machines  are  known  and 
the  inventions  relating  to  mowers  and  reapers 
and  other  agricultural  instruments  which  have 
been  fostered  by  the  patent  system  would  not 
probably  be  brought  to  public  notice  except  for 
it  and  by  reason  of  this  protection.  America 
now  supplies  agricultural  machinery  to  the 
world,  and  not  only  that,  but  is  able  to  produce 
crops  at  a  price  which  defies  competition  and 
which  enables  American  products  to  be  sent  to 
the  four  corners  of  the  earth. 

The  career  of  Fulton  in  connection  with  steam 
navigation  is  well  known,  and  the  importance 
of  his  inventions  is  understood  by  every  school- 


SOME  FAMOUS  INVENTOES.  9 

boy.  All  know  how  Singer,  Howe,  Wheeler,  Wil- 
son and  others  have  made  the  sewing-machine 
known  in  every  hamlet,  not  only  in  America, 
but  in  Europe ;  how  modern  processes,  every 
one  of  which  is  or  has  been  patented,  have  en- 
abled America  to  ship  iron  and  steel  even  to 
Great  Britain,  as  well  as  to  all  other  parts  of 
the  earth  ;  how  American  locomotives  are  now 
rolling  through  the  wildernesses  of  Siberia  and 
over  the  mountains  of  Japan ;  how  American 
boots  and  shoes  are  sold  everywhere,  and  how 
every  one  of  these  industries  has  been  made 
what  it  is  by  reason  of  improved  machinery. 
Comparatively  young  people  can  remember 
how  boots  and  shoes  were  made  by  hand  in 
scattered  country  districts  until  the  introduc- 
tion of  the  McKay  machines  subsequent  to 
1860,  and  immediately  thereafter  how  import- 
ant cities  sprung  up  because  the  machinery 
made  it  possible  to  turn  out  the  manufactures 
cheaply  and  in  small  localities. 

It  is  as  familiar  as  A,  B,  C  how  Morse  and 
Bell  and  Edison  and  Thomson  and  other  lesser 
lights  have  made  the  electric  phenomena  ser- 
viceable ;  have  "  harnessed  the  lightning"  and 
have  made  what  was  formerly  a  superstitious 
wonder  a  common  vehicle  of  every-day  use. 

Most,  if  not  all,  of  the  men  referred  to  above, 
together  with  others  who  are  well  known,  would 
have  lived  and  died  poor  were  it  not  for  the  fact 


10  EFFECT  OF  PATENTS. 

that  the  patent  system  has  opened  to  them  a 
laudable  source  of  wealth.  It  must  be  remem- 
bered that  while  the  patent  system  has  been  a 
blessing  to  these  men,  still  the  chief  blessing 
has,  after  all,  been  to  the  American  public,  to 
whom  the  inventors  have  turned  over  the  won- 
ders of  the  nineteenth  century,  and  by  whom 
what  were  formerly  luxuries  are  now  brought 
to  every  household. 

It  cannot  be  contended  that  these  industries 
would  have  been  promoted  by  the  expenditure 
of  years  of  toil  on  the  part  of  those  individuals 
and  the  expenditures  of  vast  treasures  unless 
the  patent  system  had  offered  reward  for  such 
endeavors  and  for  such  expenditures.  From 
these  sources  have  resulted  the  wonderful 
manufacturing  conditions  in  America,  and  it 
seems  clear  that  the  patent  system  has  been  of 
more  value  to  Americans  than  any  other  one 
thing. 

Not  only  this,  but  the  beneficent  effects  are 
felt  in  war  as  well  as  in  peace.  Every  manu- 
facturer and  almost  every  firm  now  knows  the 
difference  between  the  work  of  a  clodhopper 
from  darkest  Russia  and  that  of  an  intelli- 
gent native  American.  The  vast  difference  is 
due,  in  a  great  measure,  to  the  fact  that  almost 
every  American  is  at  the  present  time  more  or 
less  familiar  with  mechanics,  owing  to  the  wide 
distribution  of  mechanical  inventions.  As  long 


EFFECT  OF  PATENTS.  11 

ago  as  the  civil  war  it  was  found  that  every 
company  contained  men  who  could,  when  occa- 
sion required,  rig  up  a  locomotive,  repair  a 
telegraph  line,  send  telegrams  if  necessary, 
run  a  printing  office,  or  do  anything  which  the 
occasion  demanded.  So,  likewise,  in  the  recent 
Spanish  war,  the  great  superiority  of  the  Ameri- 
can navy  is  said  to  lie  principally  in  the  fact 
that  it  was  manned  chiefly  by  mechanics  who 
were  familiar  with  mechanism  and  who  could 
handle  with  effect  machinery  constituting  a 
modern  fighting  navy. 

It  is,  of  course,  understood  that  the  part  any 
one  of  the  various  industries  plays  or  has  played 
in  American  development  is  in  many  instances 
subject-matter  for  a  volume  itself,  and  the  mat- 
ter is  only  referred  to  here  in  a  general  way  to 
illustrate  the  immensity  of  American  manufac- 
tures and  the  fact  that  these  manufactures 
have  been  introduced  primarily  by  the  Ameri- 
can patent  system. 


12 


CHAPTER  III. 

PATENTS    IN    THE    NINETEENTH    CENTURY   AND 
A   FEW   KEMARKS  TO   MANUFACTURERS. 

We  are  apt  to  forget,  surrounded  as  we  are 
by  the  many  comforts  and  inventions  of  the  last 
few  generations,  that  the  dawn  of  the  Nine- 
teenth Century  found  mankind  in  about  the 
same  condition,  so  far  as  industrial  develop- 
ment is  concerned,  as  he  was  when  the  pyramids 
were  built  or  when  Phidias  adorned  Athens 
with  the  artistic  treasures  which  were  a  copy 
for  posterity. 

The  difference  was  merely  one  of  degree.  The 
carrying  trade  of  the  world  was  done  in  ships 
which  were  the  same  in  principle  as  those  the 
hardy  Norsemen  navigated  in  their  early  trips 
to  Newfoundland  and  the  American  Continent, 
and  with  which  Columbus  made  his  memorable 
voyage  across  the  Atlantic.  The  student  did 
not  uburn  the  midnight  oil,"  but  with  diffi- 
culty perused  his  after-dark  studies  by  the  light 
of  a  pine  knot  or  a  tallow  dip.  One  modern  steam- 
ship like  the  "  Kaiser  Wilhelm  Der  Grosse" 
will  carry  more  merchandise  in  a  year  than  per- 


PATENTS  OF  THE  NINETEENTH  CENTURY.       13 

haps  the  whole  commerce  of  America  amounted 
to  at  the  beginning  of  the  century.  Steam  did 
not  affect  the  ocean  carrying  trade,  the  land 
carrying  trade  or  passenger  traffic ;  New  York 
and  Boston  were  far  distant  municipalities ; 
Philadelphia  was  as  far  from  New  York  as 
Denver  is  now.  Communication  was  so  slow 
and  uncertain  that  only  the  most  important 
events  were  attempted  to  be  transmitted  and  the 
result  was  often  disastrous.  As  late  as  the  war 
of  1812,  the  most  important  battle  was  fought 
long  after  the  treaty  of  peace  had  been  agreed 
to.  Our  late  war  with  Spain  was  fought  and 
finished  in  two  hemispheres  in  less  time  than  it 
took  to  get  a  message  to  Europe  and  return. 
Practically  everything  consumed  was  of  hand 
manufacture  and  mostly  homemade. 

The  great  industries  of  modern  times  were  as 
yet  undreamed  of.  It  is  said  that  the  steel  out- 
put of  the  United  States  for  1898  was  greater 
than  the  steel  manufacture  from  the  time  of 
Tubal  Cain  to  the  beginning  of  the  Nineteenth 
Century. 

Not  one  of  the  great  enterprises  of  the  present 
era  had  been  inaugurated.  The  standard  of 
living  was  low.  Armies  could  be  moved  no 
quicker  than  in  the  days  when  Hannibal 
marched  his  legions  from  Spain  to  Italy,  or 
when  Julius  Csesar  made  his  wonderful  march 
across  the  Alps.  The  telegraph,  the  telephone, 


U      PATENTS  OF  THE  NINETEENTH  CENTUBY. 

the  electric  light,  the  typewriter,  the  sewing 
machine,  the  mowing  machine,  the  locomotive, 
the  modern  weaving  machinery,  in  fact  nearly 
everything  of  common  and  necessary  use  in  the 
industrial  arts,  was  as  yet  undiscovered. 

Alfred  Russell  Wallace,  who  cooperated  with 
Darwin  in  formulating  the  doctrine  of  the 
"  survival  of  the  fittest"  and  who  is  conspic- 
uous as  a  writer  of  natural  history  and  a  great 
and  scientific  observer,  says  that  the  Nineteenth 
Century  marks  the  most  important  epoch  within 
the  whole  historic  period  or,  perhaps,  since  the 
stone  age.  He  calls  it  uThe  Age  of  Inven- 
tion" and  compares  the  beginning  of  this  era 
with  the  introduction  of  fire. 

To  enumerate  in  these  pages  the  many  won- 
derful inventions  or  more  than  hint  at  their  im- 
portance would  require  more  space  than  could 
be  given  in  a  book  of  this  character.  The  im- 
portance of  the  Nineteenth  Century  inventions, 
scientifically,  industrially  and  socially,  are  well 
understood.  But  what  is  not  understood  and 
what  has  been  generally  overlooked  is  the  fact 
that  this  supremely  important  period  is  due 
largely  to  the  beneficent  patent  system  of  the 
most  progressive  nations.  Naturally  we  find 
the  most  liberal  patent  system  in  the  country 
which  leads  the  procession  in  inventions. 

It  may  be  said  that  the  patent  system  follows 
inventions,  and  while  it  is  true  that  one  is  de- 


STIMULUS  NECESSARY.  15 

pendent  on  the  other,  still  it  is  certain  that 
nearly  all  the  inventions  which  have  done  so 
much  for  the  world  and  which  have  raised  the 
standard  of  living  and  general  intelligence 
would  never  have  been  commercially  and  prac- 
tically developed  were  it  not  for  the  initial  pro- 
tection of  the  patent  system. 

It  is  not  necessary  to  quote  authorities  to 
show  that  man  is  inherently  selfish,  and  while 
he  loves  approbation,  still  he  would  never  go 
to  the  extent  to  which  most  great  inventors  have 
had  to  go,  would  not  have  denied  himself  and 
his  family,  would  not  have  labored  for  years  at 
great  expense  and  at  great  suffering  in  some 
cases,  merely  to  secure  the  honor  of  bringing 
forth  a  great  invention.  It  has  required  some- 
thing in  the  nature  of  a  pecuniary  reward  or,  at 
least,  something  to  hold  out  the  hope  of  reward, 
to  induce  the  inventor  to  properly  develop  his 
inventions  and  to  exercise  his  ingenuity  to  the 
utmost. 

It  is  common  to  laud  the  orator  or  the  great 
general  or  some  philanthropist  far  more  than 
the  inventor,  but  the  real  inventor  is  the  king 
among  men.  He  does  not  always  invent  a 
machine,  but  his  breadth  of  mind  and  his  sweep 
of  view  comprehend  everything  between  heaven 
and  earth.  He  fears  nothing,  not  even  ridicule, 
but  has  a  mind  open  to  discover  truth  where- 
ever  it  may  be  found.  He  does  not  always  in- 


16  LITTLE  THINGS. 

vent  a  machine.  He  may,  like  Homer  or  Mil- 
ton, exercise  his  mental  characteristics  to  pour 
forth  songs  to  delight  the  ages.  He  may,  like 
Galileo  or  Columbus  or  Copernicus,  change  the 
human  idea  of  the  universe,  or  he  may,  like 
Fulton  or  Morse,  use  his  ingenuity  to  indus- 
trially help  the  race,  but  in  every  case  the  men- 
tal attitude  and  characteristics  are  the  same. 

It  is  to  such  men  that  the  world  should  do 
homage. 

Perhaps  it  may  not  appear  at  first  view  what 
this  has  to  do  with  the  commercial  value  of 
patents,  but  on  an  instant's  reflection  it  will  be 
seen  that  these  inventions,  which  really  consti- 
tute the  modern  industrial  fabric,  have  all  been 
the  means  of  colossal  fortunes  for  those  inter- 
ested in  them,  especially  in  view  of  the  fact  that 
every  great  invention,  instead  of  closing  the 
avenue  of  inventive  work  along  that  line,  has 
always  opened  a  field  which  has  been  filled  im- 
mediately by  lesser  inventions  worthy,  how- 
ever, of  commercial  exploitation  and,  as  a  rule, 
profitable. 

The  smaller  inventions  are  frequently  in  fact 
the  most  profitable  to  one  whose  means  are 
somewhat  limited,  because  they  can  be  devel- 
oped and  exploited  for  a  comparatively  small 
sum,  while  the  larger  aifairs  usually  require 
modest  fortunes  to  show  their  worth  or  the  lack 
of  it. 


LITTLE  THINGS.  17 

The  " little  things"  are  often  "the  big 
things"  in  the  aggregate. 

Everyone  knows  how  fortunes  have  been 
quickly  made  out  of  glove  fasteners,  shoe  eye- 
lets, and  a  hundred  other  "little  things."  A 
match  is  a  little  thing,  but  yet  the  match  in- 
dustry is  large  enough  to  absorb  the  attention 
of  one  of  the  great  trusts  of  the  country.  And 
the  industry  is  paying  dividends  on  $18,000,000. 

Everyone  may  not  know  that  even  the  wooden 
toothpicks  which  are  apparently  so  insignificant 
are  made  and  sold  in  carload  lots,  and  that 
all  the  machines  for  making  them  have  been 
patented,  while  originally  the  toothpicks  them- 
selves were  subject  to  patent.  Clothespins, 
shoe  nails  and  even  peg  wood  for  boots  are  all 
sold  in  immense  quantities. 

Several  fortunes  were  made  in  the  manufac- 
ture of  paper  collars.  A  good  toy  will  usually 
realize  a  fortune  for  its  promoters  in  a  season 
or  two.  And  so  we  might  go  on  indefinitely. 
The  point  is  that,  if  there  is  a  reasonably  large 
sale  for  an  invention  and  it  is  properly  pro- 
tected, it  is  worthy  of  attention.  If  it  is  not  or 
cannot  be  patented,  it  is  not  ordinarily  worthy 
of  attention  for  competition  then  reduces  the 
price  to  practically  the  cost  of  the  labor  and 
material  of  which  it  is  made. 

A  device,  machine  or  process  which  is  patented 
and  which  to  any  appreciable  extent  decreases 


18  VALUE  OF  PATENT  SYSTEM. 

the  cost  of  making  any  staple  goods  is  of  self- 
evident  value.  Competition  is  so  close  that  a 
small  saving  in  cost  of  goods,  or  a  means  of 
making  better  goods  at  a  given  cost,  is  of  great 
value,  the  value  depending,  of  course,  on  the 
line  of  goods  and  the  relative  quantity  con- 
sumed. 

Nothing  in  the  manufacturing  line  is  so  good 
as  a  good  patented  invention.  Suppose,  for  in- 
stance, that  the  leading  manufacturers  in  a  cer- 
tain line  have  pooled  or  formed  a  trust.  Such 
a  trust  can  easily,  by  their  well-known  methods, 
crush  any  outsider  having  only  its  facilities. 
But  if  the  outsider  gets  control  of  a  better  article 
or  a  cheaper  or  better  machine  or  process  of 
manufacture,  then  the  trust  must  make  terms 
with  him. 

It  will  be  seen  that  the  patent  protection 
offers  almost  the  only  means  of  securing  large 
profits  on  a  reasonable  investment  so  far  as  or- 
dinary industrial  business  is  concerned,  that  is, 
business  outside  of  the  great  monopolies  which 
have  absorbed  certain  lines  of  commerce. 

There  are  only  a  few  ways  of  avoiding  this 
destructive  competition.  One  is  by  combining 
or  pooling  all  the  industries  of  a  certain  kind 
in  the  form  of  a  trust  and  another  is  to  manu- 
facture some  articles  on  which  there  can  be 
patent  protection,  or  which  have  become  known 


VALUE  OF  PROPER  PROTECTION.       19 

and  favored  by  the  trade  and  are  recognized  by  a 
lawful  trade-mark. 

This  fact  should  make  the  manufacturers — 
and  does  make  them — eager  to  take  up  a  good 
invention  and  it  should  also  cause  them  to  be 
very  careful  to  see  that  the  invention  is  prop- 
erly patented  so  that  they  can  safely  enter  into 
its  manufacture. 

The  alert  inventor  will  also  strive  to  invent 
along  practical  lines  as  pointed  out  in  another 
chapter. 

The  manufacturer  or  inventor  will  likewise  be 
on  the  lookout  for  the  opportunity  which  may 
show  itself  but  once  and  then  momentarily  ;  and 
both  knowing  the  many  elusive  qualities  of 
patent  rights  and  that  a  patent  is  a  creature  of 
statute,  shaped  in  every  instance  more  or  less 
according  to  skill,  should  be  careful  to  see  that 
their  interests  are  properly  safeguarded.  This 
can  only  be  done  by  those  skilled  in  such  mat- 
ters, and  many  an  inventor,  when  the  validity  and 
scope  of  his  patent  has  been  assailed  or  he  wishes 
to  sell  his  patent,  has  found  that  he  has  little 
or  nothing  of  value  for  the  reason  that  his  ap- 
plication for  a  patent  was  not  properly  prepared 
and  prosecuted  while  pending  in  the  Patent 
Office. 


20 


CHAPTER  IY. 

WHAT  IS   PATENTABLE. 

In  the  United  States  patents  are  issued  for  a 
machine,  an  article  of  manufacture,  an  art  or 
process,  a  composition  of  matter,  a  design. 

Machine. — The  Standard  Dictionary  defines 
a  machine  as  any  combination  of  inanimate 
mechanism  for  utilizing  or  applying  power. 
This  broad  view  is  the  one  adopted  by  the 
Patent  Office  and  the  courts. 

Any  new  and  useful  machine  is  patentable. 
As  to  utility,  this  may  be  nominal ;  that  is  to 
say,  if  the  machine  is  at  all  useful  and  is  new, 
it  is  patentable,  but  the  machine  must  be  new 
or  an  improvement  on  existing  machines.  As 
to  novelty,  this  does  not  usually  consist  in  a 
wholly  new  machine,  for  it  is  very  seldom  that 
a  machine  is  made  with  new  parts.  In  fact,  it 
is  doubtful  if  one  is  ever  made  in  which  all  the 
parts  are  new. 

Usually  a  machine  consists  of  a  combination 
of  elements  old  in  themselves,  but  combined  in 
a  new  way  so  as  to  accomplish  a  new  result  or 


MANUFACTURE.  21 

to  accomplish  an  old  result  in  a  new  or  better 
way.  The  one  essential  is  that  there  must  be 
some  new  operative  change  in  the  machine. 

If  the  difference  in  construction  between  the 
new  machine  and  the  old  is  slight  but  the  dif- 
ference in  results  is  obvious,  then  there  is  in- 
vention and  the  novelty  contained  in  the  struc- 
ture is  patentable.  But  let  the  machine  be 
ever  so  new,  its  parts  or  operative  means  and 
not  its  principle  must  be  claimed,  and  while  a 
skillful  attorney  will  draw  claims  broad  enough 
to  cover  all  analogous  structures  and  so  secure 
the  field  to  the  inventor,  still,  within  the  mean- 
ing of  the  United  States  Patent  Law,  one  cannot 
claim  a  principle,  as  a  principle  is  too  indefinite 
and  intangible  to  come  within  the  scope  of  the 
claim. 

Let  it  be  borne  in  mind  in  connection  with 
this  subject  and  those  immediately  following, 
that  an  invention  is  not  necessarily  a  new  crea- 
tion, but  the  inventor  may  simply  perceive  a 
means  or  a  way  of  bettering  mechanical  con- 
trivances and  accomplish  the  result  by  im- 
proved means  which  involve  sufficient  novelty 
to  come  within  the  scope  of  the  term  invention 
and  to  entitle  him  to  a  patent.  That  is,  the  im- 
proved means  involve  something  more  than 
mere  mechanical  skill. 

A  Manufacture. — A  manufacture  is  any- 
thing made  by  industrial  art  or  processes  or 


22  COMPOSITION  OF  MATTER. 

skill,  whether  it  be  made  by  hand  or  by 
machinery.  Generally  speaking,  an  article  of 
manufacture,  as  contemplated  by  the  patent 
law,  comprises  any  vendible  article  of  trade  or 
commerce  which  is  not  a  machine  or  a  com- 
position of  matter  ;  for  example,  a  bag,  a  chair, 
or  a  shoe  is  an  article  of  manufacture. 

Composition  of  Matter.— Within  the  mean- 
ing  of  the  patent  law,  a  composition  of  matter 
is  a  combination  of  two  or  more  substances 
making  a  substance  which  has  some  useful 
function.  A  well-known  example  of  this  kind 
is  an  explosive,  a  plating  compound,  a  polish- 
ing substance,  a  substance  for  removing  hair 
from  hides  or  grease  from  leather,  et  cetera. 

In  applying  for  a  patent  as  stated  in  another 
chapter,  the  applicant  must  specify  the  ingre- 
dients, the  proportions  in  which  they  are 
mingled  and  the  manner  of  combining  them, 
whether  chemically  or  otherwise,  so  that  any 
person  skilled  in  the  art  can,  from  his  descrip- 
tion, make  the  new  composition. 

Improvements.— An  improvement,  as  its 
name  indicates,  is  usually  an  advance  made  in 
an  art  or  the  construction  of  a  machine  which 
improves  upon  one  already  existing.  This  is 
the  character  of  most  inventions.  Sometimes  a 
person  will  invent  or  discover  something  en- 
tirely new,  like  Morse's  invention  of  the  tele- 
graph, or  Bell's  invention  of  the  telephone,  and 


AKT  OR  PKOCESS.  23 

a  multitude  of  inventors  will  follow  after  and 
improve  upon  the  original  device ;  such  im- 
provements, if  they  are  really  improvements 
or  if  they  materially  affect  the  function  of  the 
device,  are  patentable. 

Art  or  Process.— An  art  or  process,  within 
the  meaning  of  the  patent  law,  is  a  method  of 
reaching  or  accomplishing  a  certain  result  as 
distinct  from  the  result  itself  or  from  the  mech- 
anism or  means  for  accomplishing  the  process. 

An  art  is  the  most  comprehensive  of  inven- 
tions as  it  may  include  practically  or  may 
really  cover  both  the  method  or  process  and 
the  instrumentalities  used  in  the  operation. 
Some  means  must  be  described  for  carrying  the 
process  into  effect,  but  in  order  that  the  process 
and  the  instrumentalities  or  apparatus  may  be 
included  in  one  patent,  they  should  be  so  de- 
pendent, one  on  the  other,  that  they  cannot 
practically  be  separated. 

Broadly  and  generally  an  art  or  process  is  a 
new  operative  means  for  accomplishing  a  cer- 
tain result.  A  patent  for  an  art  is  usually  the 
broadest  kind  of  a  patent.  For  example,  if  a 
process  comprises  three  distinc-t  steps  in  the 
treatment  of  a  certain  subject-matter,  the  claim 
will  cover  those  three  steps  and  it  will  not 
matter  whether  the  steps  are  performed  by 
hand,  by  machinery  or  in  what  way  they  are 
performed.  The  mere  fact  that  they  are  per- 


24  DESIGN  PATENTS. 

formed  by  an  unauthorized  party  will  constitute 
an  infringement  of  the  claim.  It  should  be 
clearly  understood  that  the  art  or  process  is 
entirely  distinct  from  any  mechanism  employed 
in  carrying  the  art  or  process  into  effect,  al- 
though if  the  mechanism  and  the  process  are 
dependent  one  on  the  other,  both  may  be  in- 
cluded in  the  same  patent  and  both  the  process 
and  the  apparatus  or  mechanism  covered  by 
independent  claims.  But  though  an  art  com- 
prises so  much,  it  must  be  capable  of  producing 
tangible,  physical  results,  or  else  it  is  too  in- 
definite to  come  within  the  purview  of  the 
patent  law. 

This  subject  of  what  can  be  included  in  a 
claim  for  an  art  and  what  should  be  included  is 
one  requiring  the  utmost  skill  and  discrimina- 
tion. The  claims  should  include  only  what 
can  be  rightly  claimed  under  a  patent  for  an 
art  or  process.  They  must  not  be  so  broad  as 
to  claim  an  inoperative  art,  they  should  not  be 
so  narrow  as  to  limit  the  patentee  too  much  in 
practicing  the  art  or  process,  but  there  are  so 
many  nice  distinctions  relating  to  this  matter 
of  claims  that  it  must  be  left  to  the  attorney, 
who  will  judge  by  the  circumstances  of  each 
individual  case. 

Designs. — The  statute  relating  to  designs 
reads :  "  Any  person  who,  by  his  own  industry, 
genius,  efforts  and  expense,  has  invented  and 


DESIGN  PATENTS.  25 

produced  any  new  and  original  design  for  a 
manufacture,  bust,  statue,  alto-relievo,  or  bas- 
relief  ;  any  new  and  original  design  for  the 
printing  of  woolen,  silk,  cotton  or  other  fabrics ; 
any  new  and  original  impression,  ornament, 
patent  (pattern),  print,  or  picture  to  be  printed, 
painted,  cast  or  otherwise  placed  on  or  worked 
into  any  article  of  manufacture ;  or  any  new, 
useful  arid  original  shape  or  configuration  for 
any  article  of  manufacture,  the  same  not 
having  been  known  or  used  by  others  before 
his  invention  or  production  thereof,  or  patented 
or  described  in  any  printed  publication,  may, 
upon  the  payment  of  the  fee  prescribed,  and 
other  due  proceedings  had  the  same  as  in  cases 
of  inventions  and  discoveries,  obtain  a  patent 
therefor." 

Design  patents  are  issued  for  three  and  a 
half,  seven  and  fourteen  years  and  the  appli- 
cant must  elect,  when  lie  files  his  application, 
for  which  term  he  will  have  his  patent  issue. 

Inventors  frequently  have  an  idea  that  they 
can  procure  design  patents  cheaply  and  that 
they  will  cover  the  same  ground  as  a  patent  for 
a  structure.  This  is  not  usually  so.  Design 
patents  relate  exclusively  to  the  shape,  outline 
or  configuration  of  any  figure,  article,  print, 
fabric  and  the  like.  The  claim  being  merely  to 
the  configuration,  then,  it  is  obvious  that  any 
radical  departure  from  such  configuration  will 


26  DESIGN  PATENTS. 

not  be  an  infringement  of  a  patent  for  a  design. 
Generally  speaking,  the  rule  is  the  same  as  in 
regard  to  an  infringement  of  a  trade-mark, 
that  is :  Will  an  ordinary  purchaser  be  de- 
ceived and  mistake  one  design  for  the  other  ? 

While  the  claim  of  a  design  patent  relates 
exclusively  to  the  configuration  or  shape,  out- 
line or  ornamentation,  still  there  are  cases 
where  articles  of  manufacture  and  even  mechan- 
ical articles  are  valuable  chieHy  because  of 
their  peculiar  shape  and  in  such  case  a  design 
patent  is  the  proper  means  of  protecting  them, 
because,  as  a  rule,  a  patent  for  the  structure 
cannot  be  obtained.  Any  new  configuration 
can  be  covered  by  a  design  patent  even  though 
it  may  not  be  purely  ornamental.  For  exam- 
ple, a  man  may  have  a  machine  frame  of  a  new 
shape,  which  shape  is  advantageous  or  which 
increases  the  value  of  the  machine,  and  such  a 
frame  may  be  covered  by  a  design  patent. 
Perhaps  it  may  be  necessary  to  cover  the  frame 
of  a  cultivator,  the  body  of  a  carriage,  orna- 
mental designs  of  fabrics,  such  as  carpets,  laces, 
and  a  thousand  and  one  other  articles,  and  so 
long  as  the  form  or  configuration  is  essential, 
the  design  patent  is  usually  the  proper  and 
often  the  only  means  of  protection. 


27 


CHAPTER  V. 

CAVEATS. 

Caveats,  while  still  allowed  by  the  statute 
and  filed  to  a  certain  extent  in  the  Patent  Office, 
are  gradually  falling  into  disuse.  A  caveat  is 
really  of  little  value  to  the  inventor.  When  a 
person  has  an  invention,  more  or  less  complete, 
he  can  file  a  written  description  of  the  inven- 
tion, together  with  a  drawing,  if  this  can  be 
done,  in  the  Patent  Office  by  paying  the  pre- 
scribed fee.  The  caveat  will  be  in  force  for  a 
year,  and  can  be  renewed  from  year  to  year  by 
renewing  the  fee. 

Caveats  can  be  filed  by  citizens  of  the  United 
States  only,  though  it  has  been  recommended 
to  Congress  that  this  privilege  be  extended  to 
foreigners. 

The  caveat  does  not  protect  the  inventor  and 
does  not  give  him  any  right,  as,  for  example, 
the  right  conferred  by  the  issue  of  a  patent,  but 
it  merely  entitles  him  to  notice  in  case  some 
other  party  applies  for  a  patent  for  substan- 
tially the  same  thing  while  his  caveat  is  in  force. 


28  CAVEATS. 

As  the  caveator  has  not  an  exclusive  right, 
the  only  advantage  from  such  a  notice  is  that 
he  can  himself  file  an  application  for  a  patent, 
and  thereupon  he  will  be  declared  in  interfer- 
ence with  the  other  party  who  has  filed  an 
application  for  a  patent  on  a  similar  article  and 
has  filed  similar  claims.  This  advantage  is  of 
a  doubtful  character,  and  the  caveat  really 
amounts  only  to  evidence  ;  that  is  to  say,  it  is 
good  evidence  that  at  the  time  of  filing  his 
caveat  he  had  an  invention  in  as  complete  a 
condition  as  his  caveat  papers  show.  If  he 
then  files  his  application,  and  claims  the  same 
matter  claimed  by  the  other  applicant  he  has 
an  interference  suit  on  hand.  The  subject  of 
interferences  will  be  treated  hereafter,  but  as  it 
is  mentioned  incidentally  here,  it  may  be  well 
to  say  that  an  interference,  so  styled,  is  a  con- 
test between  applicants  who  claim  a  patent  on 
the  same  invention,  and  as  the  patent  obviously 
cannot  be  issued  to  both,  this  contest  has  to  be 
first  settled,  and  the  patent  will  be  issued  to  the 
one  who  proves  to  be  the  first  inventor.  This 
matter  of  interferences  is  a  very  important  one, 
the  practice  concerning  which  is  intricate  and 
not  thoroughly  well  settled  in  every  particular, 
but  the  subject  will  be  treated  in  a  separate 
chapter. 

Concerning  the  subject  in  hand,  to  wit,  ca- 
veats,  it  will  be  clearly  seen   from  the  few 


CAVEATS.  29 

remarks  relating  to  them  that  a  caveat  is  merely 
evidence,  and  that  the  inventor  would  be  as 
well  off  if  he  had  merely  made  a  drawing  of  his 
invention  and  had  it  witnessed  by  reputable 
persons  who  could  make  oath  that  they  had 
seen  it  at  a  certain  time. 

If  instead  of  filing  his  caveat,  he  had  made 
his  invention  sufficiently  complete  to  enable 
him  to  show  an  operative  device,  and  had  filed 
his  application  for  a  patent,  he  would  have 
been  much  better  off,  because  the  first  applicant 
has  a  decided  advantage  in  an  interference  case, 
and  the  burden  of  proof  is  on  the  second  appli- 
cant, who  must  show  by  strong  proof  that  he 
was  the  first  to  conceive  and  was  using  rea- 
sonable diligence  to  reduce  the  invention  to 
practice. 

There  are  cases  where  it  may  be  advisable  to 
file  a  caveat.  Such  a  case  might  be,  perhaps, 
where  a  party  has  in  mind  a  complex  inven- 
tion, partially  completed,  and  only  knows  in  a 
general  way  how  he  will  work  out  the  details 
and  complete  the  invention.  In  such  case  it 
may  be  to  his  advantage  to  file  a  caveat  for  the 
invention  as  far  as  completed,  which  would  be 
evidence  itself  of  having  made  the  invention  at 
the  date  of  filing  the  caveat  and  to  the  extent 
disclosed  therein. 

The  practice  of  filing  caveats  is  not  recom- 
mended to  the  average  inventor ;  first,  because 


30  CAVEATS. 

of  the  inadequate  protection  of  the  caveat,  and, 
second,  because  of  the  expense — that  is  to  say, 
while  a  caveat  is  not  in  itself  very  expensive, 
still,  if  properly  filed,  it  requires  the  prepara- 
tion of  drawings  and  specifications  by  an  expert, 
or,  at  least,  a  specification,  and  the  cost  of  this, 
taken  in  connection  with  the  Government  fee  of 
ten  dollars,  is  something  to  the  average  inventor, 
who  is  not  supposed  to  be  very  wealthy. 

The  fact  that  caveats  are  of  little  value  is 
largely  owing  to  the  further  fact  that  while  the 
caveator  is  entitled  to  notice  in  case  another 
files  an  application  for  a  similar  thing,  still  the 
Patent  Office  is  not  bound  to  give  him  such 
notice,  and  he  has  no  remedy  for  the  neglect  of 
the  Office  to  notify  him. 

Moreover,  as  the  caveat  fees  do  not  apply  on 
the  patent  fees  when  the  patent  application  is 
made,  the  cost  of  the  caveat  seems  to  be  in 
nearly  every  instance  so  much  time  and  money 
wasted.  The  better  practice  is  for  the  inventor 
to  complete  his  invention  at  as  early  a  date  as 
possible  and  make  application  for  letters  patent. 


31 


CHAPTER    VI. 

WHO   MAY   OBTAIN  A  PATENT. 

Section  4886  of  the  Revised  Statutes  says  that 
"Any  person  *  *  *  may  *  *  *  obtain  a  pat- 
ent." The  words  "any  person"  have  been 
construed  to  mean  a  man  or  woman,  whether 
the  woman  be  married  or  single  ;  and  a  minor, 
male  or  female,  as  well  as  any  person  embraced 
in  these  classes  and  also  an  alien.  It  has  been 
further  held  that  any  number  of  persons  whose 
combined  efforts  resulted  in  bringing  forth  an 
invention  could  make  application  as  joint  in- 
ventors and  the  patent  would  issue  to  them. 

In  many  foreign  countries,  the  first  to  intro- 
duce an  invention  can  obtain  a  patent,  as,  for 
instance,  in  Great  Britain.  But  in  the  United 
States  a  valid  patent  can  only  issue  on  the  ap- 
plication of  the  real  inventor  or  inventors,  who 
must  make  oath  to  the  invention  and  if  the  ap- 
plication and  oath  are  made  by  one  who  is  not 
the  real  inventor  and  the  patent  afterward 
issues  to  him  the  patent  will  be  held  invalid  if 
the  facts  in  the  case  are  proved.  Further,  the 


32  WOMEN  INVENTORS. 

invention  and  patent  to  issue  may  be  owned  by 
some  person  or  corporation  other  than  the  in- 
ventor, but,  notwithstanding  this  fact,  the  in- 
ventor must  make  the  application. 

If  the  invention  has  been  assigned  and  the 
inventor  refuses  to  make  the  application  when 
under  obligation  to  do  so,  the  owner  can  apply 
to  the  proper  court  and  get  an  injunction  re- 
straining the  inventor  from  disposing  of  the 
invention  and  can  compel  him  to  make  the  ap- 
plication. If  there  is  no  assignment,  but  only 
an  agreement  to  assign,  he  can  be  compelled  to 
execute  an  assignment  of  the  invention  to  the 
proper  party. 

Some  women  are  prolific  inventors  and  many 
of  their  inventions  are  and  have  been  of  great 
value.  This  is  true  to  such  an  extent  that  the 
Patent  Office  of  the  United  States  has  published 
and  has  for  sale  pamphlets  styled  "  Women 
Inventors ' '  and  the  mere  list  makes  quite  a  re- 
spectable volume. 

In  connection  with  this  subject  of  women  in- 
ventors, it  may  be  of  interest  to  note  that  one 
of  the  first  inventions  of  which  there  is  any 
record  was  made  by  a  woman.  To  quote  from 
a  recent  reported  lecture  of  Rev.  Dr.  1ST.  D. 
Hillis  :  "  A  thousand  years  ago  the  race  dwelt 
to  the  east  of  the  River  Jordan.  Men  came  to 
little  caves  and  these  little  caves  had  little 
doors,  and  these  doors  were  hung  on  hinges. 


WOMEN  INVENTORS.  33 

Years  before  that,  a  young  girl,  with  a  bloom 
on  her  cheek,  lived  with  her  parents  in  one  of 
these  caves,  and  one  Sunday  night  caine  a 
young  man  from  over  the  hills  to  see  the  girl's 
father,  the  first  time.  The  next  day  she  said : 
'Now,  father,  why  couldn't  this  family  have 
two  caves,  one  for  home  folks  and  one  for  com- 
pany ? '  And  the  father  said  yes,  and  the  next 
Sunday  night  the  young  man  came  over  to  see 
the  girl's  mother,  perhaps,  and  after  that  the 
young  girl  said :  '  Father,  we  ought  to  have  a 
door  between  the  two  caves  so  that  it  can  be 
shut.'  And  she  wanted  a  door  hinge,  that  the 
door  might  be  closed  at  will  between  the  two 
caves.  They  had  never  seen  hinges,  so  she  set 
her  wits  to  work  to  invent  a  door  hinge,  and 
she  made  one  of  the  first  inventions  man  ever 
saw.  No,  she  didn'  t  invent  it  at  all ;  she  copied 
it.  Here  is  the  model  of  all  the  hinges  in  the 
world,  the  hinge  in  the  elbow.  The  other  day 
a  man  was  digging  in  the  sand  to  the  east  of 
the  Jordan  and  came  upon  a  tablet  on  which 
was  the  image  of  a  young  girl ;  in  her  left  hand 
she  has  a  little  chisel  and  in  her  right  hand  she 
has  a  large  hammer.  In  front  of  her  is  a  door 
hinge,  and  over  at  this  end  is  the  outline  of  a 
little  elbow.  That  has  been  preserved  for  five 
thousand  years  to  tell  us  how  this  young  girl 
invented  the  first  tool  that  the  world  ever 


saw." 


34  JOINT  INVENTORS. 

Joint  Inventors.— Where  an  invention  is 
the  joint  product  of  two  or  more  minds  work- 
ing together  application  must  be  made  by  all 
the  parties  who  contribute  to  the  invention.  It 
is  not  necessary  to  make  joint  inventors,  that 
one  should  produce  or  invent  a  distinct  part  of 
a  machine,  a  second,  another  distinct  part, 
because,  if  this  is  the  case  and  the  distinct  part 
mentioned  constitutes  an  operative  device,  each 
must  apply  for  a  patent  on  his  own  invention, 
but  if  there  is  a  joint  contribution,  that  is  to 
say,  if  one  brings,  for  instance,  the  general 
idea,  another  contributes  certain  improved  de- 
tails and  they  thus  work  together,  one  suggest- 
ing and  another  improving,  they  must  join  as 
applicants  or  else  the  patent,  when  it  issues, 
will  be  invalid. 

It  must  be  understood,  however,  that  there 
is  a  distinction  between  invention  and  skill. 

It  is  very  unusual  for  an  inventor  who  is  not 
a  mechanic  to  employ  a  skilled  workman  to 
carry  his  ideas  into  effect,  but  this  does  not 
make  the  mechanic  an  inventor.  Not  infre- 
quently, a  skillful  mechanic  who  is  in  the  em- 
ploy of  a  great  inventor  and  really  does  good 
work,  will  make  the  statement,  which  is  given 
more  or  less  credence,  that  he  is  the  real  in- 
ventor of  such  and  such  a  thing.  The  inventor 
is  not  supposed  to  be  capable  of  doing  all  things 
and  he  has  an  undoubted  right  to  obtain  the 


WOKKMAN  AS  INVENTOK.  35 

best  skill  obtainable  to  carry  out  his  ideas ; 
that  is  to  say,  he  will  usually  get  a  skilled 
draughtsman  to  give  his  ideas  good  mechanical 
shape,  and  his  machine,  if  it  be  a  machine, 
suitable  design.  He  will  also  get  good  mechan- 
ics to  make  the  parts,  assemble  them  and  make 
such  changes  as  may  suggest  themselves  to 
their  practical  minds,  but  notwithstanding  the 
fact  that  the  work  may  be  very  skillful,  still, 
so  long  as  the  inventor  brings  the  ideas  to  the 
workman,  his  invention  is  not  thereby  impaired 
and  he  has  a  perfect  right  to  apply  for  and  ob- 
tain a  valid  patent. 

If,  however,  the  workman  by  his  skill  con- 
tributes to  the  real  substance  of  the  invention, 
as  a  whole  or  only  as  to  part,  and  he  carries 
into  effect  ideas  not  thought  of  by  his  employer, 
he  must  take  out  the  patent  himself  in  the  one 
case  or  be  joined  as  an  applicant  in  the  other. 
In  this  case  not  much  skill  is  exercised,  but  in- 
vention. If  the  patent  is  to  issue  to  one  other 
than  the  inventor  or  to  the  inventor  and  some 
other  person  not  an  inventor,  this  must  be  ef- 
fected by  a  proper  assignment. 

Persons  employed  to  do  skilled  work  have  a 
right  on  their  own  time  to  carry  into  effect  in- 
dependent inventions,  but  their  ideas  must  be 
entirely  independent  from  those  of  their  em- 
ployers, and  must  be  such  improvements  or 
must  embrace  such  changes  of  mechanism  as 


36         EMPLOYEE  AND  EMPLOYEE. 

would  not  suggest  themselves  to  an  ordinary 
skilled  mechanic.  If  the  suggestions  of  the 
mechanic  really  constitute  the  complete  ma- 
chine, and  the  one  posing  as  the  inventor  merely 
suggests  that  he  would  like  to  do  certain  things, 
without  specifying  means  by  which  the  result 
is  obtained,  and  the  mechanic's  ideas  are 
shaped  and  made  to  accomplish  the  desired 
result,  then  the  mechanic  is  the  inventor. 

Employer  and  Employee.— One  has  the 
right  to  hire  a  person  for  the  purpose  of  in- 
venting, but  in  such  case  the  employee  must 
sign  any  application  and  the  patent  to  issue 
legally  to  the  employer  must  be  duly  assigned 
to  him.  It'  the  employee,  while  in  the  general 
employ  of  the  employer,  makes  an  invention  on 
his  own  time  and  with  his  own  materials,  he 
has  the  legal  right  to  the  invention  and  his  em- 
ployer cannot  interfere  with  this  invention.  If, 
on  the  other  hand,  the  employee  has  made  an 
invention  on  his  employer's  time  and  has  used 
his  employer's  materials,  in  such  case,  the  em- 
ployee is  still  the  inventor,  but  the  employer 
has  an  implied  license,  not  transferable,  which 
a  court  of  competent  jurisdiction  will  enforce 
and  which  will  give  the  employer  the  right  to 
the  use  of  the  invention  in  his  business. 

This  implied  license,  as  above  remarked,  is 
not  transferable  and  if  the  employer  is  a  cor- 
poration, the  license  is  extinguished  by  the  dis- 


DECEASED  INVENTOR.  37 

solution  of  the  corporation.  It  will  be  seen, 
then,  that  the  employee,  in  such  a  case,  has  a 
perfect  right  to  make  any  use  of  the  invention 
he  sees  fit.  He  can  sell  it,  lease  it  or  do  any 
act  that  any  inventor  and  patent  owner  might 
do,  but  he  cannot  deprive  his  employer  of  the 
rights  of  a  licensee. 

A  Deceased  Inventor.— If  a  person  makes 
an  invention  and  dies  before  making  an  appli- 
cation for  a  patent,  or  before  the  application  is 
completed,  the  application  can  be  made  or 
prosecuted  by  the  executor  or  administrator. 
If  the  deceased  leaves  no  will,  the  right  to 
patent  will  go  to  his  legal  representatives. 

Patent  Office  Employees.— Persons  in  the 
employ  of  the  Patent  Office  are  barred  from 
procuring  patents  while  in  such  employment, 
although  an  employee  may  properly  obtain  a 
patent  after  he  has  left  the  Patent  Office. 


38 


CHAPTER  VII. 

CONCERNING   PATENTABILITY. 

What  Constitutes  Invention.— The  statute 
requires  that  in  order  to  obtain  a  patent  one 
must  invent  or  discover  something  new  and  use- 
ful. The  ^popular  definition  of  the  word  inven- 
tion is  the  contriving  or  bringing  out  of  some- 
thing  which  did  not  before  exist ;  but  the  statute 
requires  more  than  this. 

Any  fairly  resourceful  mechanic,  such  as  a 
machinist,  a  carpenter,  or  other  artisan,  is  capa- 
ble of  creating  something  which  did  not  before 
exist,  because  the  exigencies  of  his  work  re- 
quire it.  One  will  scarcely  find  two  building 
exactly  alike.  Two  machinists  will  hardly  do 
their  work  in  the  same  way  in  bringing  forth  a 
well-known  machine,  and  so  on  through  the 
whole  realm  of  mechanics. 

The  workman  who  has  had  considerable  ex- 
perience has  sufficient  skill  to  enable  him  to 
meet  the  ordinary  requirements  of  his  trade  and 
to  depart  from  existing  models  to  a  certain  ex- 
tent, but  he  is  not  called  upon  to  really  create 


DOUBLE  USE.  39 

or  invent  anything  ;  that  is  to  say,  he  is  not  re- 
quired to  use  his  inventive  faculty  to  put  to- 
gether things  in  such  essentially  new  ways  as 
to  accomplish  different  results  from  those  here- 
tofore obtained,  or  to  combine  things  so  that 
they  will  have  functional  differences  from  things 
already  combined.  The  real  distinction  between 
invention  and  mere  skill  is  that  one  is  produced 
by  original  thought,  while  mere  skill  utilizes 
the  discoveries  of  others,  either  by  imitation  or 
by  employing  good  judgment  in  selecting  and 
combining  them,  or  in  applying  them  to  prac- 
tical results. 

If  a  person  uses  his  inventive  faculty,  and 
really  gives  to  the  world  or  to  the  public  some- 
thing new  and  useful,  something  in  which  the 
result  obtained  is  real  and  tangible,  he  has  done 
the  public  a  service  and  has  given  a  quid  pro  quo 
for  the  patent  which  will  issue  to  him,  but  it  is 
not  the  intent  of  the  statute  to  offer  a  reward 
merely  for  skill,  no  matter  how  great  its  order. 

It  frequently  happens  that  a  person  will  dis- 
cover a  new  use  for  an  old  thing,  but  this  does 
not  amount  to  invention,  even  though  the  result 
is  very  important,  unless  some  change  is  re- 
quired to  adapt  the  thing  to  the  new  use.  This 
is  what  the  Patent  Office  and  courts  term  Double 
Use,  and  it  follows  that  if  a  person  merely  dis- 
covers that  a  tool  previously  used  for  certain 
purposes  can  be  used  to  advantage  for  another 


40  ISSUED  PATENTS. 

purpose  he  has  not  made  an  invention,  but  sim- 
ply has  enlarged  the  use  of  a  well-known  object. 
Moreover,  the  invention  which  he  makes  must 
be  one  that  is  not  obvious  ;  that  is  to  say,  that 
is  not  the  result  of  mere  skill. 

Issued  patents  are  open  to  the  public  and  any 
subsequent  inventor  is  presumed  to  know  oi 
their  existence,  even  though  they  may  cover 
subject-matter  which  has  never  been  put  in 
practical  use.  The  issued  patents  may  cover  a 
machine  which  has  never  been  made,  still  the 
fact  that  the  drawings  and  description  of  the 
invention  are  on  file  at  the  Patent  Office  is  a 
notice  to  any  subsequent  inventor,  as  if  the 
machine  had  really  been  built.  If,  then,  the 
new  invention  is  one  that  would  readily  suggest 
itself  to  a  person  of  ordinary  skill,  after  a  perusal 
and  examination  of  existing  patents,  then  the 
man  cannot  be  held  to  have  invented  anything, 
but  he  has  merely  followed  out  obvious  sugges- 
tions. 

The  application  of  an  old  process  to  manu- 
facture an  article  to  which  it  had  never  before 
been  applied  is  not  a  patentable  invention,  nor 
does  the  application  of  old  machinery  to  a  new 
use  involve  invention.  Aggregations  of  well- 
known  things  do  not  form  inventions  within  the 
meaning  of  the  statute.  If  stove  hooks,  socket 
wrenches  and  screw-drivers  be  old,  as  we  know 
they  are,  then  if  one  provides  a  single  tool  hav- 


AGGEEGATIONS.  41 

ing  a  hook  at  one  end  and  the  well-known  form 
of  a  screw-driver  of  the  ordinary  kind  at  the 
other  end  and  a  wrench  socket  at  some  con- 
venient place  on  the  handle,  he  has  invented 
nothing,  even  though  such  combination  never 
before  existed.  He  has  merely  aggregated  and 
collected  a  series  of  well-known  things.  This 
illustration  serves  well  to  show  the  difference 
between  the  combination  of  old  parts  to  produce 
a  new  result  and  an  aggregation.  It  will  be 
noticed  in  the  aggregation  referred  to  that  the 
stove  hook  serves  simply  as  a  stove  hook,  the 
screw-driver  as  a  screw-driver,  and  the  wrench 
as  a  wrench.  Neither  part  cooperates  with  the 
other  to  accomplish  any  result,  but  in  a  legit- 
imate combination,  the  several  parts  of  the  com- 
bination coact  to  produce  a  certain  definite  and 
tangible  result. 

It  sometimes  happens  that  one  part  may  have 
an  independent  function,  but  it  may  also  have 
a  combined  function  with  the  other  parts  or 
elements  of  the  combination.  In  such  case  a 
claim  may  be  made  for  the  part  having  the  in- 
dependent function,  and  another  claim  for  the 
part  in  combination  with  the  other  elements, 
with  which  it  coacts. 

The  examples  given  of  what  does  not  consti- 
tute invention  will  perhaps  be  as  good  a  guide 
as  any  as  to  what  does  constitute  invention.  It 
is  a  general  principle  that  mere  changes  in  the 


42         DISCOVEEY  AND  INVENTION  DEFINED. 

size  or  form  of  a  thing  or  the  number  of  articles 
composing  a  whole,  or  the  degree  of  curvature 
or  other  dimension,  as  the  shape  of  a  dye,  does 
not  amount  to  invention.  Neither  does  merely 
the  substituting  of  one  material  for  another. 
Supposing  wooden  door  knobs  to  be  common, 
it  would  not  involve  invention  to  substitute 
porcelain  for  wood,  even  though  porcelain  had 
never  before  been  used  for  a  door  knob. 

If  the  porcelain  were  a  new  composition,  then 
the  inventor  could  cover  it  as  a  composition  of 
matter  without  regard  to  the  use  to  which  the 
composition  may  be  put. 

Discovery  and  Invention  Defined. — 
Within  the  meaning  of  the  Patent  Law,  a  patent- 
able  invention  must  possess  a  certain  amount  of 
utility,  and  must  have  some  new  feature,  or  pro- 
duce some  new  result,  not  obvious  from  any 
source  of  information,  which  makes  the  inven- 
tion new  or  else  gives  it  a  function  or  use  not 
heretofore  existing. 

A  patentable  discovery  consists  in  first  find- 
ing some  principle  or  law  of  nature  within  the 
range  of  patentable  subject-matter  and  reducing 
the  same  to  practice. 

Tests  of  Patentable  Novelty.— As  pre- 
viously stated,  probably  one  of  the  best  tests  of 
patentable  novelty  is  this:  Is  there  anything 
existing  in  the  art  which  would  naturally  sug- 
gest to  a  skilled  mechanic  the  alleged  inven- 


TESTS  OF  PATENTABLE  NOVELTY.  43 

tion  ?  If  there  is  an  essential  change  in  func- 
tion, it  would  be  held  as  generally  true  that 
there  is  invention.  If  the  change  of  function  is 
not  essentially  obvious,  but  the  result  achieved 
is  important ;  for  example,  if  it  is  a  machine 
and  it  makes  a  given  article  at  a  less  cost  or 
makes  better  articles  or  has  essentially  better 
results  in  any  way,  this  fact  of  betterment  is 
significant  and  it  is  almost  conclusive  evidence 
that  the  new  matter  involves  invention.  Or  as 
one  judge  says:  "  While  it  is  true  that  the 
utility  of  a  machine,  instrument  or  contrivance, 
as  shown  by  the  general  public  demand  for  it 
when  made  known,  is  not  conclusive  evidence 
of  novelty  and  invention,  it  is,  nevertheless, 
highly  persuasive  in  that  direction,  and  in  the 
absence  of  pretty  conclusive  evidence  to  the  con- 
trary, will  generally  exercise  controlling  in- 
fluence. " 

A  decided  advance  in  the  art  or  in  the  result, 
even  though  accomplished  by  means  quite  sim- 
ilar to  something  heretofore  existing,  is  ordi- 
narily good  evidence  of  invention. 

Some  Inventions  not  Patentable.— It  is 
possible  for  one  to  use  great  ingenuity  and  in- 
vent something  which  has  never  before  existed 
and  which  is  useful  and  valuable,  and  yet  may 
not  come  within  the  purview  of  the  patent  law. 
It  is  not  unusual  for  a  person  to  invent  a  certain 
advertising  scheme  which  is  an  excellent  thing, 


44  INVENTIONS  NOT  PATENTABLE. 

which,  enables  the  advertiser  to  do  better  adver- 
tising than  has  been  done  before  and  yet  the 
scheme  is  not  patentable  because  it  cannot  be 
put  in  such  tangible  shape  as  to  come  under  the 
head  of  a  machine,  a  manufacture,  an  art  or 
process,  or  a  composition  of  matter. 

Many  patents  are  taken  out  on  advertising 
devices  and  some  of  them  are  very  remunera- 
tive. But  there  is  a  difference  between  a  de- 
vice and  a  scheme  or  method  of  advertising. 
The  latter  is  not  patentable.  It  is  a  mental 
process  pure  and  simple.  And  so  one  may  have 
a  new  business  method  or  scheme  which  is  ever 
so  ingenious,  which  is  valuable,  but  which  can- 
not be  put  in  such  shape  as  to  be  patentable  or 
does  not  come  under  the  classification  of  patent- 
able  subjects,  likewise,  one  may  have  a  method 
of  bookkeeping,  which  would  render  the  work 
easier  or  more  accurate,  but  this  comes  under 
the  head  of  unpatentable  and  intangible  things. 
If  the  invention  is  in  a  book  and  its  peculiar 
arrangement,  the  book  may  be  patented,  but 
not  the  method.  When  one  has  evolved  an  idea 
along  these  lines  all  he  can  do  is  to  get  what  he 
can  out  of  it,  before  other  people  discover  the 
scheme,  but  he  cannot  invoke  the  protection  of 
the  law. 

Inventions  which  are  against  public  policy 
are  not  patentable,  and  while  a  hard  and  fast 
rule  cannot  be  laid  down  as  to  what  inventions 


INVENTIONS  NOT  PATENTABLE.  45 

are  against  public  policy,  still  the  inventor 
usually  knows  whether  or  not  such  is  the  case. 
It  has  been  held  that  slot  machines  used  merely 
for  gambling  purposes  are  inventions  of  this 
class  and  as  such  are  not  patentable. 


CHAPTER  VIII. 

PRIOR  USE — PUBLIC  USE— EXPERIMENTS. 

The  statute  provides  that  an  invention  to  be 
patentable  must  not  be  known  or  used  before 
applicant's  invention  or  discovery  thereof,  or 
patented  or  described  in  any  printed  publica- 
tion in  any  country  before  his  discovery  or 
invention  thereof,  or  more  than  two  years  prior 
to  the  application,  or  in  public  use  or  on  sale  in 
the  United  States  for  more  than  two  years  prior 
to  the  application  for  the  patent,  unless  the 
same  is  proved  to  have  been  abandoned.  The 
statute  is  not  quoted,  but  only  its  substance 
given.  It  is  provided  further  by  statute  that  it 
is  a  good  defense  for  an  action  of  infringement 
of  the  patent  to  show  that  the  patentee  was  not 
the  original  and  first  inventor  or  discoverer  of 
the  invention  patented.  Such  prior  use  means 
use  by  another  than  the  inventor,  the  knowl- 
edge and  use  occurring  prior  to  the  patentee's 
invention. 


PUBLIC  USE.  47 

The  use  or  knowledge  of  the  invention  abroad 
will  not  affect  the  patent  here,  providing  it  had 
not  been  patented  or  described  in  a  printed 
publication  anywhere  before  its  invention  in 
this  country.  A  foreign  patent  or  publication 
to  anticipate  an  application  or  invalidate  a  pat- 
ent must  disclose  substantially  the  same  inven- 
tion, and  must  have  been  made  public  before 
the  person  who  obtained  the  American  patent 
made  the  invention. 

In  attempting  to  take  advantage  of  the  de- 
fense of  prior  use,  it  very  often  happens  that 
the  defense  will  make  a  reference  to  some 
alleged  prior  invention  containing  the  substance 
of  the  thing  patented,  when,  as  a  matter  of  fact, 
the  prior  invention  was  in  the  nature  of  an  ex- 
periment, and  was  abandoned.  These  aban- 
doned experiments  are  not  of  such  a  nature, 
within  the  meaning  of  the  statute,  as  will 
invalidate  a  patent.  The  burden  of  proof,  when 
prior  use  is  set  up,  is  on  the  defendant,  and  it 
takes  strong  proof  to  establish  such  a  defense. 
If  a  prior  patent  has  been  issued  for  the  same 
invention  as  that  disclosed  by  a  later  patentee, 
even  though  the  claims  are  not  identical,  the 
prior  patent  will  invalidate  the  subsequent  one 
unless  the  subsequent  patentee  can  show  that 
he  was  really  the  first  inventor. 

Two  Years'  Public  Use.— The  inventor  may 
have  made,  used  or  sold  his  invention  in  the 


48  EXPERIMENTS. 

United  States  to  a  great  extent  and  for  profit, 
but  this  will  not  debar  him  from  obtaining  a 
valid  patent  if  such  use  has  not  been  continued 
for  more  than  two  years  prior  to  his  application 
for  patent,  and  he  can  honestly  make  oath  to 
the  fact  that  the  invention  has  not  been  in  pub- 
lic use  or  on  sale  in  the  United  States  for  more 
than  two  years,  even  though  he  may  have  been 
at  work  on  the  invention  for  many  years,  so 
long  as  his  work  was  of  an  experimental  nature. 
If,  however,  the  inventor  has  made  or  sold  or 
used  the  article  publicly  for  more  than  two 
years  prior  to  his  application,  and  this  fact 
can  be  proved,  he  cannot  obtain  a  valid  patent, 
as  a  court  will  construe  such  long  public  use  as 
an  abandonment  of  the  invention  to  the  public. 
Nor  can  any  inventor  obtain  a  valid  patent  if 
he  allows  it  to  be  used  by  persons  generally, 
either  with  or  without  compensation. 

Experiments.— In  connection  with  this  sub- 
ject of  public  use  and  prior  use  is  the  matter  of 
experiments.  A  public  experiment  is  never 
public  use  within  the  meaning  of  the  statute, 
so  long  as  the  experiment  is  bona  fide  and  is 
for  the  purpose  of  testing  the  qualities  of  the 
invention.  If  the  inventor  uses  the  invention 
for  profit,  and  not  for  experimental  purposes, 
that  is  public  use,  though  in  some  instances,  if 
the  profit  was  incidental,  or  it  was  necessary  to 
result  in  profit  to  show  the  inventor  how  to 


EXPERIMENTS.  49 

perfect  Ms  invention,  and  was  so  nsed,  such 
would  not  amount  to  public  use.  The  experi- 
ment may  have  been  used  in  public  every  day 
for  several  years,  and  have  been  known  to  hun- 
dreds of  persons,  and  yet  not  be  a  public  use. 


50 


BOOK  II. 


CHAPTER  I. 

THE  APPLICATION. 

The  matter  of  making  the  application  for  a 
patent  is  one  of  supreme  importance  to  the  in- 
ventor. It  may  be  that  he  has  an  invention 
such  as  will  never  come  to  him  again,  that  is 
of  more  importance  than  any  other  to  him,  and 
it  is  therefore  absolutely  necessary  that  all 
his  rights  be  properly  safeguarded.  Moreover, 
if  the  invention  is  worthy  of  patenting  at  all,  it 
is  worthy  of  patenting  well. 

Patent  Office  practice  is  intricate  and  pecu- 
liar and  only  those  persons  who  are  naturally 
qualified  for  this  work  and  have  added  to  their 
natural  qualifications  by  study  and  experience 
are  competent  to  attend  to  it.  Many  people 
who  have  not  had  experience" in  this  line  think 
that  if  they  get  a  patent  under  the  seal  of  the 
Patent  Office  this  covers  everything,  and  that 
a  patent  is  a  patent.  Nothing  could  be  farther 
from  the  truth. 


THE  APPLICATION.  51 

A  patent  application  embodies  a  petition, 
specification,  drawings  and  oath  ;  the  details 
of  which  will  be  hereinafter  referred  to.  The 
patent  specification  is  one  of  the  most  difficult 
instruments  to  draw  properly  and  if  an  incom- 
petent or  negligent  person  has  charge  of  the 
application  and  prosecution  of  the  case,  he  is 
likely  to  let  the  patent  go  to  issue  with  claims 
which  will  not  protect  the  inventor  when  rea- 
sonable diligence  and  skill  would  have  given 
him  adequate  protection.  Every  examiner  in 
the  Patent  Office  is  often  exasperated  to  see  the 
manner  in  which  the  inventor's  interests  are 
sacrificed.  In  an  important  invention  it  often 
happens  that  the  subject-matter  is  essentially 
new,  but  that  the  claims  have  been  drawn  so 
that  in  terms  they  are  not  allowable,  whereas 
by  proper  amendment  they  would  be  so. 

In  such  a  case  the  examiner  must  reject  the 
claims.  An  incompetent  or  unscrupulous  at- 
torney who  is  anxious  to  get  a  quick  allowance 
will  sometimes  cancel  a  lot  of  rejected  claims 
and  permit  the  patent  to  go  to  issue  upon  claims 
which  are  wholly  insufficient.  The  examiner  at 
the  Patent  Office  is  not  at  fault  and  is  practi- 
cally powerless  to  help  the  inventor.  The  pat- 
entee may  probably  know  nothing  of  the 
matter  until  in  the  exploitation  of  his  invention 
he  attempts  to  sell  it  or  to  get  money  to  prop- 
erly develop  and  to  market  it.  The  prospective 


52  ATTORNEYS. 

investor,  being  a  man  of  the  world  and  having 
experience,  may  be  pleased  with  the  invention, 
but  he  will  almost  invariably  refer  the  matter 
to  his  counsel  to  see  if  the  patent  is  valid  and 
the  invention  properly  covered  by  the  claims. 
His  counsel  will,  on  investigation,  see  that  the 
patent  is  wholly  inadequate  and  must  so  report ; 
consequently  the  patentee  is  unable  to  interest 
capital  and  sees  a  fortune  slip  away  from  him, 
and  may  have  the  further  mortification  of 
seeing  the  same  person  whom  he  has  tried  to 
interest  making  a  fortune  out  of  an  invention 
so  similar  to  his  that  it  would  have  been  a  pal- 
pable infringement  if  his  patent  had  been  prop- 
erly obtained. 

Business  men  usually  recognize  the  rule  that 
cheap  help  is  the  most  expensive  ;  that  is  to 
say,  it  is  not  profitable  to  put  a  professional 
man  to  digging  a  ditch,  but  it  is  profitable  to 
employ  the  best  ditch -digger  if  a  ditch  is  to  be 
dug  and  pay  him  reasonably,  rather  than  have 
a  poorer  man  for  less  money.  Good  counsel  is 
always  the  cheapest  in  the  end  and  the  differ- 
ence in  cost  is  not  so  very  great.  The  majority 
of  patent  agents  who  advertise  widely  and  work 
cheaply  are  either  incompetent  or  else  work  for 
such  small  fees  that  they  cannot  afford  to  do 
proper  work. 

The  Patent  Office  advises  an  applicant  unless 
familiar  with  such  matters  "  to  employ  a  com- 


SOME  IMPORTANT  STATUTES.  53 

petent  attorney  as  the  value  of  patents  depends 
largely  upon  the  skillful  preparation  of  the 
specification  and  claims."  There  is  no  excuse 
for  an  inventor  if  he  suffers  through  poor  legal 
advice  and  skill.  While  there  are,  no  doubt, 
many  incompetent  attorneys  in  the  country, 
still  there  are  in  most  large  cities  competent  and 
reliable  attorneys  who  work  for  reasonable  fees 
and  who  are  thoroughly  competent  to  take  care 
of  their  clients'  interests.  The  inventor  will 
have  to  pay  such  person,  perhaps,  from  ten  to 
twenty-five  dollars  more  for  the  prosecution  of 
an  ordinary  Patent  Office  case,  but  by  the  ex- 
penditure of  this  small  additional  sum,  he  may 
save  himself  a  fortune  in  the  end.  It  is  of  the 
utmost  importance  for  any  person,  inventor  or 
otherwise,  having  any  patent  work  of  any  na- 
ture whatsoever  to  employ  good  counsel. 

Some  of  the  most  important  statutes  relating 
to  patents  are  in  their  essential  parts  as  follows : 

SECTION  4884. — Every  patent  shall  contain  a 
short  title  or  description  of  the  invention  or 
discovery,  correctly  indicating  its  nature  and 
design,  and  a  grant  to  the  patentee,  his  heirs  or 
assigns,  for  a  term  of  seventeen  years,  of  the  ex- 
clusive right  to  make,  use  and  vend  the  inven- 
tion or  discovery  throughout  the  United  States 
and  the  Territories  thereof,  referring  to  the 
specification  for  the  particulars  thereof.  A 
copy  of  the  specification  and  drawings  shall 


54  SOME  IMPORTANT  STATUTES. 

be  annexed  to  the  patent  and  be  a  part 
thereof. 

SECTION  4886. — Any  person  who  has  invented 
or  discovered  any  new  and  useful  art,  machine, 
manufacture  or  composition  of  matter,  or  any 
new  and  useful  improvements  thereof,  not 
known  or  used  by  others  in  this  country  before 
his  invention  or  discovery  thereof,  and  not  pat- 
ented or  described  in  any  printed  publication 
in  this  or  any  foreign  country,  before  his  inven- 
tion or  discovery  thereof,  or  more  than  two 
years  prior  to  his  application,  and  not  in  pub- 
lic use  or  on  sale  in  this  country  for  more  than 
two  years  prior  to  his  application,  unless  the 
same  is  proved  to  have  been  abandoned,  may, 
upon  payment  of  the  fees  required  by  law,  and 
other  due  proceeding  had,  obtain  a  patent 
therefor. 

SECTION  4887. — No  person  otherwise  entitled 
thereto  shall  be  debarred  from  receiving  a  pat- 
ent for  his  invention  or  discovery,  nor  shall 
any  patent  be  declared  invalid,  by  reason  of  its 
having  been  first  patented  or  caused  to  be  pat- 
ented by  the  inventor  or  his  legal  representa- 
tives or  assigns  in  a  foreign  country,  unless  the 
application  for  said  foreign  patent  was  filed 
more  than  seven  months  prior  to  the  filing  of 
the  application  in  this  country,  in  which  case 
no  patent  shall  be  granted  in  this  country. 

SECTION  4889. — When  the  nature  of  the  case 


SOME  IMPORTANT  STATUTES.  55 

admits  of  drawings,  the  applicant  shall  furnish 
one  copy,  signed  by  the  inventor  or  his  attor- 
ney in  fact,  and  attested  by  two  witnesses, 
which  shall  be  filed  in  the  Patent  Office  ;  and  a 
copy  of  the  drawing,  to  be  furnished  to  the 
Patent  Office,  shall  be  attached  to  the  patent 
as  a  part  of  the  specification. 

SECTION  4890. — When  the  invention  or  dis- 
covery is  of  a  composition  of  matter,  the  appli- 
cant, if  required  by  the  Commissioner,  shall 
furnish  specimens  of  ingredients  and  of  the 
composition,  sufficient  in  quantity  for  the  pur- 
pose of  experiment. 

SECTION  4892. — The  applicant  shall  make  oath 
that  he  does  verily  believe  himself  to  be  the 
original  and  first  inventor  or  discoverer  of  the 
art,  machine,  manufacture,  composition  or  im- 
provement for  which  he  solicits  a  patent ;  that 
he  does  not  know  and  does  not  believe  that  the 
same  was  ever  before  known  or  used  ;  and  shall 
state  of  what  country  he  is  a  citizen.  Such 
oath  may  be  made  before  any  person  within  the 
United  States  authorized  by  law  to  administer 
oaths,  or  when  the  applicant  resides  in  a  foreign 
country,  before  any  minister,  charge  d'affaires, 
consul,  commercial  agent,  holding  commission 
under  the  Government  of  the  United  States,  or 
before  any  notary  public  of  the  foreign  country 
in  which  the  applicant  may  be. 

SECTION  4893.— On  the  filing  of  any  such  ap- 


56  COMPLETE  APPLICATION. 

plication  and  the  payment  of  the  fees  required 
by  law,  the  Commissioner  of  Patents  shall  cause 
an  examination  to  be  made  of  the  alleged  new 
invention  or  discovery  ;  and  if  on  such  exam- 
ination it  shall  appear  that  the  claimant  is  justly 
entitled  to  a  patent  under  the  law,  and  that  the 
same  is  sufficiently  useful  and  important,  the 
Commissioner  shall  issue  a  patent  therefor. 

SECTION  4894. — All  applications  for  patents 
shall  be  completed  and  prepared  for  examina- 
tion within  one  year  after  the  filing  of  the  appli- 
cation, and  in  default  thereof,  or  upon  failure 
of  the  applicant  to  prosecute  the  same  within 
one  year  after  any  action  therein,  of  which 
notice  shall  have  been  given  to  the  applicant, 
they  shall  be  regarded  as  abandoned  by  the 
parties  thereto,  unless  it  be  shown  to  the  satis- 
faction of  the  Commissioner  of  Patents  that 
such  delay  was  unavoidable. 

As  will  be  seen  by  reference  to  the  statutes, 
it  is  necessary  in  a  complete  application  to  have 
drawings  of  the  invention  where  the  latter  ad- 
mits of  drawings,  a  petition,  a  specification 
which  will  describe  the  invention  so  accurately 
that  it  can  be  carried  into  effect  by  those  skilled 
in  the  art  from  the  specification,  and  drawings 
if  any,  and  an  oath.  It  will  be  assumed  that 
the  inventor  uses  good  judgment  and  employs 
good  counsel  to  prepare  and  prosecute  his  case. 
If  he  can  see  his  attorney,  the  latter  will  get  all 


FILING  OF  APPLICATION.  57 

the  information  lie  requires,  but  whether  he 
sees  him  or  not,  and  particularly  if  the  matter 
is  attended  to  by  correspondence,  the  inventor 
should  be  careful  to  conceal  nothing  whatever 
from  his  attorney,  but  to  go  into  the  utmost 
detail  and  specify  every  matter  which  really 
concerns  the  invention.  That  is  to  say,  it  is  not 
necessary  for  him  to  refer  in  great  detail  to 
immaterial  matters,  but  let  him  thoroughly 
describe  his  invention,  and  particularly  the 
advantages  of  the  new  construction.  Let  him 
discriminate  between  the  new  and  the  old,  and 
point  out  with  great  particularity  all  the  differ- 
ences between  the  old  and  the  new,  so  far  as  he 
can,  as  this  materially  assists  in  properly  pre- 
paring the  application  papers. 

The  specifications  and  claims,  by  their  scope, 
render  the  patent  broad  and  sufficient,  or  nar- 
row and  incomplete.  A  good  attorney  will 
bring  out  in  the  specification  all  the  essential 
matters,  describe  the  new  functions  accurately 
and  well,  and  so  lead  up  to  claims  which  he  will 
draw  in  such  a  way  as  to  thoroughly  cover  the 
invention.  The  attorney  will  prepare  the  neces- 
sary petition  and  oath,  and  after  the  papers  are 
executed  will  file  them  in  the  Patent  Office,  pay- 
ing the  first  Government  fee  of  fifteen  dollars. 

Piling  of  Application.— The  application  is 
examined  in  its  order  of  filing — that  is  to  say, 
in  the  order  in  which  it  is  received  in  relation  to 


58  EXAMINATION  OF  APPLICATION. 

other  applications.  The  applications  are  filed 
in  certain  divisions  of  the  Patent  Office  accord- 
ing to  the  nature  of  the  invention,  and  they  are 
taken  up  by  the  examiner  in  charge  of  the  divi- 
sion, in  their  regular  order,  and  this  order  is 
not  departed  from  except  in  the  following  in- 
stances : 

(1)  Applications  wherein  the  inventions  are 
deemed  of  peculiar  importance  to  some  branch 
of  the  public  service,  and  when  for  that  reason 
the  head  of  some  department  of  the  Govern- 
ment requests  immediate  action  and  the  Com- 
missioner so  orders ;  but  in  such  case  it  shall 
be  the  duty  of  such  head  of  a  department  to  be 
represented  before  the  Commissioner  in  order 
to  prevent  the  improper  issue  of  the  patent. 

(2)  Applications  for  reissues. 

(3)  Applications  which   appear   to  interfere 
with  other  applications  previously  considered, 
and  found  to  be  allowable,  or  which  it  is  de- 
manded shall  be  placed  in  interference  with  an 
unexpired  patent  or  patents. 

Examination  of  Application.— When  the 
case  is  reached  by  the  examiner,  he  goes  care- 
fully over  the  specification,  drawings  and  other 
papers,  and  if  there  are  any  technical  objec- 
tions, such  as  typographical  errors,  irregular 
claims  or  insufficient  or  improper  drawings,  he 
calls  the  attention  of  the  applicant  or  his  attor- 
ney to  this  matter,  and  usually  at  the  same 


REJECTION  OF  APPLICATION.  59 

time  lie  passes  on  the  merits  of  the  claims.  In 
construing  the  claims  and  either  allowing  or 
rejecting  them,  he  considers  the  state  of  the  art 
to  which  the  application  appertains  and  com- 
pares the  case  with  existing  United  States 
patents  in  the  art,  goes  over  such  foreign  pat- 
ents as  are  obtainable,  and  even  examines  pub- 
lic documents,  catalogues  and  technical  books, 
because  it  must  be  borne  in  mind  that  the 
invention  must  be  new  in  order  for  the  patent 
to  issue,  and  if  claims  pass  to  issue  which 
can  be  construed  to  cover  existing  matter  they 
are  invalid.  After  making  such  an  examina- 
tion the  Patent  Office  makes  a  report  to  the 
attorney  of  record,  if  there  is  one,  and  allows 
such  claims  as  are  not  found  objectionable  and 
rejects  the  others. 

It  is  here  that  the  skillful  attorney  is  of 
especial  use  to  the  inventor.  The  examiners  at 
the  Patent  Office  are,  as  a  rule,  conscientious, 
careful  and  well  skilled  in  their  art,  but  they 
are  human,  and  therefore  not  infallible.  Not 
infrequently  they  will  reject  a  claim  which  is 
really  allowable,  and  if  the  attorney  is  suffi- 
ciently skillful  and  discriminating,  he  can 
usually  present  the  case  to  the  examiner  so 
that  he  will  see  that  the  claim  or  claims  may 
be  allowed,  and  the  other  claims  the  attorney 
will  cancel  or  amend,  as  the  necessities  of  the 
case  require,  until  no  claims  are  left  in  dispute 


60  ISSUE  OF  PATENT. 

but  all  remaining  are  allowable,  after  which  the 
official  notice  of  allowance  is  issued. 

The  applicant  then  has  six  months  in  which 
to  pay  the  final  Government  fee  of  twenty  dol- 
lars, and  when  this  is  paid  the  patent  issues  to 
him.  The  fee  can  be  paid  at  once  or  at  any 
time  during  the  six  months.  If  the  attorney 
and  the  examiner  cannot  agree  as  to  the  allow- 
ability  of  the  claims,  the  applicant  can  appeal. 
It  sometimes  happens  that  two  or  more  appli- 
cations for  the  same  subject-matter,  but  by 
different  inventors,  will  be  pending  in  the  Pat- 
ent Office  at  the  same  time,  or  that  a  pending 
application  will  be  rejected  on  a  patent  issued 
within  two  years  of  the  filing  of  the  applica- 
tion, and  that  the  applicant  can  show  that  he 
has  made  his  invention  before  the  filing  of  the 
prior  patent.  In  either  of  these  cases  the  par- 
ties are  declared  in  interference.  This  matter 
of  appeals  and  interferences  will  be  considered 
in  separate  chapters. 


61 


CHAPTER  II. 

APPEALS. 

The  rules  of  practice  relating  to  the  prosecu- 
tion of  patent  applications  and  of  appeals  in 
patent  cases  are  extremely  liberal  to  the  in- 
ventor and  would-be  patentee  and  give  him  the 
opportunity  to  obtain  his  rights  without  undue 
expense.  The  claims  are  not  left  to  be  decided 
by  the  individual  who,  though  ever  so  honest, 
might  do  the  inventor  great  injustice.  But  if 
the  applicant  for  a  patent  is  dissatisfied  with 
the  ruling  of  an  examiner  in  the  Patent  Office 
who  rejects  a  claim  or  claims,  he  has  the  right 
to  appeal  from  the  decision  of  the  primary  ex- 
aminer to  the  Board  of  Examiners-in-Chief; 
from  the  Examiners-in-Chief  to  the  Commis- 
sioner of  Patents,  and  from  the  Commissioner 
of  Patents  to  the  Court  of  Appeals  for  the  Dis- 
trict of  Columbia,  so  that  there  is  ample  means 
for  him  to  obtain  his  deserts. 

The  practice  of  the  primary  examiner  in  mak- 
ing the  examination  and  passing  on  the  patent- 
ability of  claims  has  been  already  gone  into  in 
the  preceding  chapter,  but  it  sometimes  happens 


62  APPEALS. 

that  the  examiner  and  the  applicant  or  his  at- 
torney cannot  agree  on  claims  which  are  thought 
to  be  allowable.  In  that  case  the  applicant  has 
a  right,  as  above  stated,  to  appeal  to  the  Board 
of  Examiners-in-Chief .  This  Board  is  composed 
of  three  skilled  persons,  competent  to  pass  on 
the  scope  and  patentability  of  claims,  and  to 
them  the  appeal  is  taken  in  the  first  instance. 
For  such  an  appeal  there  is  a  Government  fee 
of  ten  dollars,  but  if  there  are  questions  which 
do  not  involve  the  patentability  of  the  claim  or 
affect  the  merits  of  the  invention,  for  instance, 
as  to  the  question  of  division  or  whether  an 
amendment  shall  be  entered  and  considered,  he 
can  petition  the  Commissioner  without  fee,  and 
have  the  question  considered  and  decided  by 
him. 

Before  an  appeal  can  be  had  to  the  Board  of 
Examiners-in-Chief,  the  claim  'must  have  been 
twice  presented  and  twice  rejected.  The  hear- 
ing before  the  Board  of  Examiners-in-Chief  is 
substantially  the  same  as  a  hearing  in  court. 
The  appellant  files  his  reasons  for  appeal  and 
usually  a  brief  of  the  authorities  and  arguments 
on  which  he  relies  to  maintain  his  appeal,  and 
if  he  desires  he  can  have  an  oral  hearing  before 
the  Board.  If  the  decision  is  adverse  to  him  he 
can  appeal  to  the  Commissioner  in  person  upon 
the  payment  of  the  fee  of  twenty  dollars,  and 
the  Commissioner  reviews  the  decision  of  the 


APPEALS.  63 

Board  and  can  either  affirm  or  reverse  it  and, 
as  before  remarked,  if  he  desires  the  applicant 
may  appeal  from  the  decision  of  the  Commis- 
sioner to  the  Court  of  Appeals  for  the  District 
of  Columbia.  In  each  case  of  appeal  the  ap- 
pellant must  state  his  reasons  for  the  appeal ; 
state  wherein  the  person  or  persons  making  the 
decision  appealed  from  erred,  and  should  file  a 
brief  setting  forth  the  grounds  of  appeal,  author- 
ities on  which  he  relies,  etc. 


CHAPTEE  III. 

INTERFERENCES. 

An  interference  is  a  proceeding  instituted  for 
the  purpose  of  determining  the  question  of 
priority  of  invention  between  two  or  more  par- 
ties claiming  substantially  the  same  patentable 
invention.  The  mere  fact  that  one  of  the  par- 
ties has  already  obtained  a  patent  will  not  pre- 
vent an  interference,  for,  although  the  Commis- 
sioner has  no  power  to  cancel  a  patent,  he  may 
grant  another  patent  for  the  same  invention  to 
the  person  who  proves  to  be  the  prior  inventor. 
Interference  according  to  practice  in  the  Patent 
Office,  will  be  declared  in  the  following  cases 
when  all  parties  claim  substantially  the  same 
patentable  invention : 

(1)  Between  two  or  more  original  applications 
containing  conflicting  claims. 

(2)  Between  the  original  application  and  an 
unexpired  patent  containing  conflicting  claims, 
when  the  applicant,  having  been  rejected  on  the 
patent,  shall  file  an  affidavit  that  he  made  the 
invention  before  the  patentee's  application  was 
filed. 


INTEBFEKENCES.  65 

(3)  Between  an  original  application  and  an 
application  for  the  reissue  of  a  patent  granted 
during  the  pendency  of  such  original  applica- 
tion. 

(4)  Between  the  original  application  and  a 
reissue  application,  when  the  original  applicant 
shall  file  an  affidavit  showing  that  he  made  the 
invention  before  the  patentee's  original  applica- 
tion was  filed. 

(5)  Between  two  or  more  applications  for  the 
reissue  of  patents  granted  on  applications  pend- 
ing at  the  same  time. 

(6)  Between  two  or  more  applications  for  the 
reissue  of  patents  granted  on  applications  not 
pending  at  the  same  time,  when  the  applicant 
for  reissue  of  the  later  patent  shall  file  an 
affidavit  showing  that  he  made  the  invention 
before  the  application  was  filled  on  which  the 
earlier  patent  was  granted. 

(7)  Between  a  reissue  application  and  an  un- 
expired  patent,  if  the  original  applications  were 
pending  at  the  same  time,  and  the  reissue  ap- 
plicant shall  file  an  affidavit  showing  that  he 
made  the  invention  before  the  original  applica- 
tion of  the  other  patentee  was  filed. 

(8)  Between  an  application  for  reissue  of  a 
later  unexpired  patent  and  an  earlier  unexpired 
patent,  granted  before  the  original  application 
of  the  later  patent  was  filed  if  the  reissue  ap- 
plicant shall  file  an  affidavit  showing  that  he 


66  DECLARATION  OF  INTERFERENCE. 

made  the  invention  before  the  original  applica- 
tion for  the  earlier  patent  was  filed. 

(9)  An  interference  will  not  be  declared  be- 
tween an  original  application  filed  subsequently 
to  December  31,  1897,  and  a  patent  issued  more 
than  two  years  prior  to  the  date  of  filing  such 
application,  or  an  application  for  a  reissue  of 
such  patent. 

Before  the  declaration  of  interference  all  pre- 
liminary questions  must  be  settled  by  the  pri- 
mary examiner  and  the  issue  must  be  clearly 
defined.  The  invention  which  is  to  form  the 
subject  of  the  controversy  must  be  decided  to 
be  paten  table  and  the  claims  of  the  respective 
parties  must  be  put  in  such  condition  that  they 
will  not  require  alteration  after  the  interference 
shall  have  been  finally  decided  unless  the  testi- 
mony adduced  on  the  trial  shall  necessitate  or 
justify  it.  It  is  not  proposed  here  to  go  into 
the  technicalities  of  an  interference  proceeding. 
Such  matters  are  uninteresting  reading  for  one 
who  is  not  specially  interested  in  an  interfer- 
ence case  and  moreover  the  subject  is  compre- 
hensive enough  to  require  a  volume  to  treat  it 
with  accuracy  and  detail.  Further,  no  sane 
person,  unless  he  be  a  patent  attorney  or 
familiar  with  interference  proceedings,  would 
think  of  prosecuting  an  interference  case  him- 
self, but  would  get  some  competent  lawyer  to 
represent  him.  The  practice  in  interference 


IMPORTANCE  OF  EARLY  APPLICATION.         67 

proceedings  is  intricate  and  requires  the  services 
of  a  lawyer  of  good  skill  and  experience.  The 
proceedings  are  in  the  nature  of  a  contest  in 
equity  and  the  parties  to  the  interference  are 
required  under  proper  rules  to  take  testimony 
to  prove  when  they  conceived  the  invention, 
when  they  made  drawings,  if  any,  when  they 
made  a  model,  if  any,  what  they  have  done  in 
the  way  of  making  the  complete  invention  and 
matters  tending  to  show  when  the  invention  was 
conceived  and  completed,  and  generally  such 
matters  as  will  tend  to  prove  who  is  the  first 
inventor,  which  is  the  real  question  in  issue. 

Importance  of  an  Early  Application.— 
If  several  applications  are  pending  for  the  same 
subject-matter  at  the  same  time,  the  parties  will 
be  in  interference,  but  the  one  who  first  files  his 
application  is  the  senior  party,  so  called,  and  it 
will  take  strong  evidence  on  the  part  of  others 
to  overcome  the  probability  that  he,  the  first 
applicant,  is  the  first  inventor.  Moreover,  the 
one  who  first  reduces  an  invention  to  practice 
takes  the  important  step  and  so  important  in 
fact  that  if  he  has  conceived  the  invention  sub- 
sequent to  the  conception  of  another,  but  is  the 
first  to  reduce  the  invention  to  practice  and  the 
other  neglects  unreasonably  to  reduce  to  prac- 
tice, then  the  proceedings  will  be  decided  in 
favor  of  the  one  who  has  used  diligence  in  put- 
ting his  invention  into  practical  shape.  Now  it 


68  EVIDENCE  OF  INVENTION. 

is  held  that  a  complete  application  for  a  patent 
is  a  constructive  reduction  to  practice,  for,  to 
make  a  complete  application,  drawings  and 
a  specification  are  required,  which  enable  an 
operative  machine  or  device  to  be  made,  or  a 
process  to  be  operatively  carried  out,  or  a  com- 
position to  be  put  together  in  practical  shape. 
The  necessity  of  an  early  filing  of  the  applica- 
tion is  therefore  apparent.  Fortunately,  inter- 
ference proceedings  are  not  so  very  common  ; 
on  the  other  hand  they  are  not  unusual,  and 
therefore  it  is  decidedly  to  the  interest  of  in- 
ventors, for  this  and  other  reasons,  to  make  an 
application  for  a  patent  as  soon  as  they  can  get 
the  matter  into  proper  shape  for  such  applica- 
tion. It  is  believed  that  interference  cases  will 
be  rather  less  common  than  formerly  because, 
owing  to  a  recent  decision,  the  claims  of  dif- 
ferent parties  must  be  substantially  alike  in 
order  to  constitute  an  interference. 

Evidence  of  Invention.— No  one  can  tell 
whether  or  not  he  may  be  involved  in  an  inter- 
ference proceeding  when  he  files  his  application 
for  a  patent,  and  therefore  a  prudent  inventor 
will  preserve  evidence  of  his  invention.  The 
importance  of  making  an  early  application  by 
the  inventor  has  already  been  shown,  but  he 
should  also  be  able  to  furnish  good  evidence  of 
his  invention,  outside  of  his  application.  When 
he  conceives  the  invention,  it  is  well  for  him  to 


BEDUCTION  TO  PEACTICE.  69 

make  a  sketch  of  it  if  possible,  sign  and  date 
the  same,  and  have  competent  witnesses  to  the 
sketch.  It  is  also  well  to  make  a  complete  work- 
ing invention  at  as  early  a  date  as  possible  as  he 
has  then  effected  what  is  known  as  "reduction 
to  practice."  This  is  an  important  matter  in 
case  he  gets  into  interference  proceedings,  for 
one  may  have  an  early  eonception  of  an  inven- 
tion and  take  no  further  steps  to  put  it  in  prac- 
tice and  make  it  of  value  to  the  public.  A  later 
inventor  may  at  once  proceed  to  reduce  his  in- 
vention to  practice  ;  to  build  a  machine,  if  it  be 
a  machine,  or  to  complete  the  invention,  what- 
ever its  character,  and  in  such  case  the  inter- 
ference proceedings  will,  other  things  being 
equal,  usually  be  decided  in  favor  of  the  one 
who  has  used  diligence  in  perfecting  his  inven- 
tion even  though  he  may  not  be  the  first  to  con- 
ceive. These  matters  of  conception,  reduction 
to  practice,  diligence,  laches,  etc.,  are  each  of 
great  importance  in  interference  proceedings 
and  there  are  so  many  questions  which  arise 
and  concern  the  relative  importance  of  any  one 
of  them  that  no  general  statement  can  be  made 
as  to  which  is  the  most  important,  for  the  cir- 
cumstances in  each  case  affect  this  matter. 

It  can  be  laid  down  as  a  good  rule,  however, 
that  the  inventor  to  protect  his  interest  should 
always  first  reduce  the  conception  to  tangible 
form  by  a  drawing  or  description  as  soon  as  he 


70  HEAEING. 

can  do  so  and  have  the  matter  witnessed. 
Second,  that  he  should,  as  soon  as  possible, 
carry  his  conception  into  effect  by  building  the 
structure,  if  it  be  a  structure,  or  completing  the 
invention,  whatever  its  nature,  and,  third  and 
most  important,  he  should  make  his  applica- 
tion for  his  patent  just  as  soon  as  he  can  get  the 
subject-matter  for  the  application  and  can  de- 
cide that  the  matter  is  worth  patenting.  If  the 
testimony  has  been  taken  on  both  sides  in  an 
interference  proceeding,  the  records  of  the  testi- 
mony and  the  briefs  of  counsel  are  laid  in  the 
proper  manner  before  the  examiner  of  interfer- 
ences and  the  case  is  usually  argued  by  counsel, 
after  which  the  examiner  renders  his  decision 
on  the  case.  The  question  of  appeal  is  prac- 
tically the  same  as  already  considered  under 
appeals  from  the  primary  examiner,  that  is  to 
say,  either  party  can  appeal  from  the  examiner 
of  interferences  to  the  Board  of  Examiners-in- 
Chief,  from  the  Board  to  the  Commissioner  in 
person,  and  from  the  Commissioner  to  the  Court 
of  Appeals  for  the  District  of  Columbia. 


71 


CHAPTER  IV. 

DISCLAIMERS   AND    EEISSUES. 

A  disclaimer  is  an  amendment  to  a  patent 
after  issue,  which  disclaims  some  definite  and 
specific  part  of  the  patent. 

The  object  of  a  disclaimer  is  to  avoid  having 
a  patent  declared  invalid  in  case  of  litigation, 
by  reason  of  claiming  more  than  the  owner  is 
entitled  to  as  justly  and  truly  his  own,  unless 
he  has  preserved  the  right  to  disclaim  the  sur- 
plus. This  right  may  be  lost  by  unreasonable 
neglect  or  delay  to  file  a  disclaimer  in  the 
Patent  Office. 

As  stated  in  another  chapter,  each  claim 
stands  or  falls  by  itself.  In  case  of  litigation  a 
favorable  decision  will  be  rendered  if  only  one 
claim  is  infringed.  It  is  usual  before  bringing 
a  suit  to  have  an  examination  made  into  the 
validity  of  the  patent,  and  in  case  counsel  finds 
that  one  or  more  claims  are  probably  invalid 
and  he  does  not  care  to  have  them  passed  upon, 
he  does  not  put  these  questionable  claims  in, 
issue.  This  makes  it  unnecessary  to  file  a  dis- 
claimer as  to  those  claims,  and  principally  on 


72  DISCLAIMERS. 

this  account  disclaimers  are  not  very  often 
used. 

The  sections  of  the  statute  relating  to  dis- 
claimers are  as  follows : 

SECTION  4917.— Whenever,  through  inadvert- 
ence, accident,  or  mistake,  and  without  any 
fraudulent  or  deceptive  intention,  a  patentee 
has  claimed  more  than  that  of  which  he  was 
the  original  or  first  inventor  or  discoverer,  his 
patent  shall  be  valid  for  all  that  part  which  is 
truly  and  justly  his  own,  provided  the  same  is 
a  material  or  substantial  part  of  the  thing 
patented ;  and  any  such  patentee,  his  heirs  or 
assigns,  whether  of  the  whole  or  any  sectional 
interest  therein,  may,  on  payment  of  the  fee 
($10.00)  required  by  law,  make  disclaimer  of 
such  parts  of  the  thing  patented  as  he  shall  not 
choose  to  claim  or  to  hold  by  virtue  of  the 
patent  or  assignment,  stating  therein  the  extent 
of  his  interest  in  such  patent.  Such  disclaimer 
shall  be  in  writing,  attested  by  one  or  more 
witnesses,  and  recorded  in  the  Patent  Office ; 
and  it  shall  thereafter  be  considered  as  part  of 
the  original  specification  to  the  extent  of  the 
interest  possessed  by  the  claimant  and  by  those 
claiming  under  him  after  the  record  thereof. 
But  no  such  disclaimer  shall  affect  any  action 
pending  at  the  time  of  its  being  filed,  except  so 
far  as  may  relate  to  the  question  of  unreason- 
able neglect  or  delay  in  filing  it. 


DISCLAIMERS.  73 

SECTION  4922. — Whenever,  through  inadvert- 
ence, accident,  or  mistake,  and  without  any 
willful  default  or  intent  to  defraud  or  mislead 
the  public,  a  patentee  has,  in  his  specification, 
claimed  to  be  the  original  and  first  inventor  or 
discoverer  of  any  material  or  substantial  part 
of  the  thing  patented,  of  which  he  was  not  the 
original  and  first  inventor  or  discoverer,  every 
such  patentee,  his  executors,  administrators 
and  assigns,  whether  of  the  whole  or  any  sec- 
tional interest  in  the  patent,  may  maintain  a 
suit  at  law  or  in  equity,  for  the  infringement  of 
any  part  thereof,  which  was  bona  fide  his  own, 
if  it  is  a  material  and  substantial  part  of  the 
thing  patented,  and  definitely  distinguishable 
from  the  parts  claimed  without  right,  notwith- 
standing the  specifications  may  embrace  more 
than  that  of  which  the  patentee  was  the  first 
inventor  or  discoverer.  But  in  every  such  case 
in  which  a  judgment  or  decree  shall  be  rendered 
for  the  plaintiff,  no  costs  shall  be  recovered 
unless  the  proper  disclaimer  has  been  entered 
at  the  Patent  Office  before  the  commencement 
of  the  suit.  But  no  patentee  shall  be  entitled 
to  the  benefits  of  this  section  if  he  has  unrea- 
sonably neglected  or  delayed  to  enter  a  dis- 
claimer. 

These  sections  should  be  construed  together, 
and  the  kind  of  disclaimer  referred  to  differs 
from  those  which  are  embodied  in  the  original 


74  KEISSUES. 

or  in  reissue  applications,  as  originally  filed  or 
subsequently  amended,  in  which  the  disclaim- 
ant  does  not  claim  title  to  matter  shown  and 
described .  It  also  differs  from  those  made  to 
avoid  the  continuance  of  an  interference.  These 
latter  disclaimers  must  be  signed  by  the  appli- 
cant in  person  and  must  be  duly  witnessed, 
and  require  no  fee. 

It  will  be  seen  from  the  sections  quoted  that 
any  owner  of  the  patent  or  of  any  rights  under 
the  same  may  disclaim,  but  the  disclaimer  affects 
only  the  interests  possessed  ' 4  by  the  claimant 
(the  one  making  the  disclaimer)  and  by  those 
claiming  under  him  after  the  record  thereof." 

It  appears,  therefore,  that  if  there  are  differ- 
ent owners  of  a  patent,  one  may  disclaim,  thus 
affecting  the  rights  of  those  claiming  under 
him,  while  the  others  may  have  a  different 
right  in  the  patent  because  one  party  may 
think  a  disclaimer  should  be  recorded  while 
another  may  take  a  different  view  of  the  mat- 
ter. A  disclaimer  should  only  be  filed  under 
the  advice  of  competent  counsel,  and  if  filed  at 
all  it  must  be  filed  without  unreasonable  delay. 

Reissues. — The  reason  for  filing  a  reissue  is  to 
correct  a  patent  which  is  inoperative  or  invalid. 
This  occurs  when  the  specification  is  defective 
or  insufficient,  or  the  patentee  claims  as  his  own 
invention  or  discovery  more  than  he  had  a 
right  to  claim  as  new.  If  the  error  has  arisen 


KEISSUES.  75 

by  inadvertence,  accident  or  mistake,  and  with- 
out any  fraudulent  or  deceptive  intention,  and 
the  applicant  otherwise  complies  with  the  law, 
a  new  patent  will  be  issued  to  him. 

Usually  reissues  are  applied  for  merely  to 
broaden  the  invention.  It  rarely  occurs  that  a 
court  will  sustain  a  reissued  patent  where  the 
invention  is  broadened,  particularly  when 
there  has  been  unreasonable  delay  in  making 
the  application.  If  there  has  been  a  delay  of 
two  years  or  more  this  would,  unless  in  excep- 
tional cases,  be  held  to  be  unreasonable.  In 
fact,  much  less  time  than  this  has  been  held  to 
be  unreasonable,  particularly  where  others  have 
entered  the  field  who  would  not  have  infringed 
the  claims  of  the  original  patent. 

In  view  of  the  fact  that  a  reissued  patent  with 
broadened  claims  will  generally  be  held  to  be 
invalid,  it  is  of  the  utmost  importance  that  the 
application  for  a  patent  in  the  first  instance 
should  be  carefully  prepared  and  the  applica- 
tion skillfully  prosecuted  while  pending  in  the 
Patent  Office  by  those  competent  to  attend  to 
such  matters.  Otherwise,  the  inventor  may 
find  himself  in  possession  of  a  patent  which 
does  not  protect  his  invention  and  which  is  of 
little  or  no  commercial  value. 

The  principal  statute  relative  to  reissues  is  as 
follows : 

SECTION  4916. — Whenever  any  patent  is  inop- 


76  KEISSUES. 

erative  or  invalid,  by  reason  of  a  defective  or 
insufficient  specification,  or  by  reason  of  the 
patentee  claiming  as  his  own  invention  or  dis- 
covery more  than  he  had  a  right  to  claim,  as 
new,  if  the  error  has  arisen  by  inadvertence, 
accident  or  mistake,  and  without  any  fraudu- 
lent or  deceptive  intention,  the  Commissioner 
shall,  on  the  surrender  of  such  patent  and  the 
payment  of  the  duty  required  by  law,  cause  a 
new  patent  for  the  same  invention,  and  in 
accordance  with  the  corrected  specification,  to 
be  issued  to  the  patentee,  or,  in  case  of  his 
death  or  of  an  assignment  of  the  whole  or  any 
undivided  part  of  the  original  patent,  then  to 
his  executors,  administrators,  or  assigns,  for 
the  unexpired  part  of  the  term  of  the  original 
patent.  Such  surrender  shall  take  effect  upon 
the  issue  of  the  amended  patent.  The  Commis- 
sioner may,  in  his  discretion,  cause  several 
patents  to  be  issued  for  distinct  and  separate 
parts  of  the  thing  patented  upon  demand 
of  the  applicant,  and  upon  payment  of  the 
required  fee  for  a  reissue  for  each  of  such  reis- 
sued letters  patent.  The  specifications  and 
claim  in  every  such  case  shall  be  subject  to 
revision  and  restriction  in  the  same  manner  as 
original  applications  are.  Every  patent  so  reis- 
sued, together  with  the  corrected  specifications, 
shall  have  the  same  effect  and  operation  in  law, 
on  the  trial  of  all  actions  for  causes  thereafter 


REISSUES.  77 

arising,  as  if  the  same  had  been  originally  filed 
in  such  corrected  form ;  but  no  new  matter 
shall  be  introduced  into  the  specification,  nor 
in  case  of  a  machine  patent  shall  the  model  or 
drawings  be  amended,  except  each  by  the 
other;  but  when  there  is  neither  model  nor 
drawing,  amendments  may  be  made  upon  proof 
satisfactory  to  the  Commissioner  that  such  new 
matter  or  amendment  was  a  part  of  the  original 
invention,  and  was  omitted  from  the  specifica- 
tion by  inadvertence,  accident  or  mistake,  as 
aforesaid. 

The  Patent  Office  requires  when  filing  an 
application  for  a  reissue  that  the  applicant, 
besides  the  usual  petition  and  oath,  must  file  a 
statement  on  oath  as  follows : 

(1)  That  applicant  verily  believes  the  original 
patent  to  be  inoperative  or  invalid,  and  the 
reason  why. 

(2)  When  it  is  claimed  that  such  patent  is  so 
inoperative  or  invalid  "  by  reason  of  a  defective 
or  insufficient  specification/'  particularly  speci- 
fying such  defects  or  insufficiencies. 

(3)  When  it  is  claimed  that  such  patent  is  in- 
operative or  invalid  "  by  reason  of  the  patentee 
claiming  as  his  own   invention  or  discovery 
more  than  he  had  a  right  to  claim  as  new,"  dis- 
tinctly specifying  the  part  or  parts  so  alleged 
to  have  been  improperly  claimed  as  new. 

(4)  Particularly  specifying  the  errors  which 


78  EEISSUES. 

it  is  claimed  constitute  the  inadvertence,  acci- 
dent or  mistake  relied  upon,  and  how  they 
arose  or  occurred. 

(5)  That  said  errors  arose  "without  any 
fraudulent  or  deceptive  intention  "  on  the  part 
of  the  applicant. 

The  government  fee  for  reissue  applications 
is  thirty  (30)  dollars.  Owing  to  the  work  in- 
volved to  prosecute  a  reissue  patent  properly, 
even  under  the  most  favorable  circumstances,  it 
is  necessary  for  the  attorney  usually  to  charge 
more  for  his  work  than  for  the  preparation  of 
original  applications. 


CHAPTER  Y. 

ABANDONED,    FORFEITED,    EEVIVED  AND 
RENEWED   APPLICATIONS. 

An  abandoned  application  is  one  which  has 
not  been  completed  and  prepared  for  examina- 
tion within  one  year  after  the  filing  of  the  peti- 
tion, or  which  the  applicant  has  failed  to  prose- 
cnte  within  one  year  after  any  action  therein  of 
which  notice  has  been  duly  .given,  or  which  the 
applicant  has  expressly  abandoned  by  filing  in 
the  Office  a  written  declaration  of  abandonment 
signed  by  himself  and  assignee,  if  any,  identi- 
fying his  invention  by  title  of  invention,  serial 
number  and  date  of  filing.  Prosecution  of  the 
application  to  save  it  from  abandonment  must 
include  such  proper  action  as  the  condition  of 
the  case  may  require.  The  mere  fact  of  offer- 
ing an  amendment  will  not  save  the  case  from 
abandonment,  but  the  amendment  must  be  in 
the  nature  of  a  proper  response  to  the  last  offi- 
cial action  on  the  case. 

Revival  of  Abandoned  Cases.— Before 
the  application  abandoned  by  failure  to  com- 
plete or  prosecute  can  be  revived  as  a  pending 


80  FOEFEITED  APPLICATION. 

application  it  must  be  shown  to  the  satisfaction 
of  the  Commissioner  that  the  delay  in  the  pros- 
ecution of  the  same  was  unavoidable.  If  a  new 
application  is  filed  in  place  of  the  abandoned 
or  rejected  one,  a  new  specification,  oath,  draw- 
ing and  fee  will  be  required,  but  the  old  model, 
if  any,  and  if  suitable,  may  be  used. 

Forfeited  Application.— A  forfeited  ap- 
plication is  one  on  which  a  patent  has  been 
withheld  for  failure  to  pay  the  final  fee  within 
the  prescribed  time.  This  time,  it  will  be  re- 
membered, is  six  months  after  the  allowance  of 
the  application.  That  is,  the  final  fee  of  twenty 
dollars  must  be  paid  at  some  time  between  the 
date  of  allowance  and  six  months  from  said 
date.  When  the  patent  has  been  withheld  by 
reason  of  the  non-payment  of  the  final  fee,  any 
person,  whether  inventor  or  assignee,  who  has 
an  interest  in  the  invention  for  which  such  pat- 
ent was  ordered  to  issue,  may  file  a  renewal  of 
the  application  for  the  same  invention,  but  such 
second  application  must  be  made  within  two 
years  after  the  allowance  of  the  original  appli- 
cation. In  such  renewal  the  oath,  petition, 
specification,  drawing  and  model,  if  any,  of  the 
original  application,  may  be  used  for  the  second 
application,  but  a  new  fee  will  be  required. 
The  second  application  will  be  regarded  for  all 
purposes  as  a  continuation  of  the  original  one, 
but  must  bear  date  from  the  time  of  renewal, 


FORFEITED  APPLICATION.  81 

and  be  subject  to  examination  like  the  original 
application.  Copies  of  the  files  in  forfeited  and 
abandoned  applications  may  be  furnished  when 
ordered  by  the  Commissioner  of  Patents.  The 
requests  for  such  copies  must  be  presented  in 
the  form  of  a  petition,  properly  verified,  as  to 
all  matters  not  appearing  of  record  in  the  Pat- 
ent Office. 


82 


CHAPTER  VI. 

INFRINGEMENT — INFRINGING   INVENTIONS  AND 
ACTS— REMEDIES   FOR  INFRINGEMENT. 

The  scope  of  the  book  does  not  include  in  de- 
tail such  subjects  as  infringements  and  interfer- 
ences, particularly  the  former,  because  the  sub- 
ject is  so  large,  the  questions  arising  within  it  so 
many,  and  the  nature  of  the  questions  requires 
such  discrimination  and  so  many  citations  that  it 
is  impossible  in  the  present  work  to  go  into  the 
matter  except  in  a  very  general  way.  The 
main  purpose  is  to  tell  what  to  do  with  inven- 
tions and  how  to  make  money  out  of  them. 
But  even  in  treating  of  this  subject,  matters 
relating  to  the  prosecution  of  patent  applica- 
tions and  questions  of  infringement  must  be,  in 
a  measure  considered,  to  make  the  work  com- 
plete and  to  make  such  matters  fairly  familiar 
to  the  inventor. 

Definition  of  Infringement— The  grant 
and  issue  of  a  patent  gives  to  the  patentee 
the  exclusive  right  to  make,  use  and  vend 
the  patented  invention  throughout  the  United 
States  and  the  territories  thereof,  during  the 


INFRINGEMENT.  83 

period  for  which  the  patent  has  been  granted. 
The  right  is  exclusive,  and  is  invaded  by  one 
who  manufactures,  by  one  who  uses  only,  or 
by  one  who  sells,  presuming,  of  course,  that 
such  person  is  not  authorized  by  the  patentee. 

This  matter  of  infringement  is  apt  to  be  the 
chief  injury  against  which  the  inventor  can 
complain,  although  there  are  other  wrongs 
against  the  patentee  which  cannot  be  gone  into 
to  any  extent. 

To  constitute  an  infringement,  the  infringing 
thing  must  be  the  same,  or  substantially  the 
same,  as  that  covered  by  the  patent.  It  makes 
no  difference  what  the  patentee  may  think  he 
has.  The  patent,  as  a  matter  of  fact,  covers 
only  the  patentable  subject-matter  which  is 
specifically  claimed,  and  which  is  capable  of 
infringement  by  an  invasion  of  the  inventor's 
rights  in  the  invention.  It  follows,  then,  that 
there  cannot  be  an  infringement,  unless  the 
patent  clearly  discloses  the  invention — that  is, 
discloses  it  to  such  an  extent  that  it  may  be 
practiced  by  one  skilled  in  the  art  from  a  study 
of  the  specifications,  and  drawings  if  any,  with- 
out regard  to  any  other  help  except  his  skill, 
which  need  not  be  above  the  average. 

The  invention  must  be  new,  and,  to  a  certain 
extent,  useful,  to  render  the  patent  valid.  But 
supposing  the  patent  to  be  valid,  the  next  ques- 
tion is,  does  the  alleged  infringement  come 


84  INFRINGEMENT. 

within  the  scope  of  the  claims  of  the  patent  ? 
It  is  not  necessary  that  it  infringe  all  the  claims, 
but  if  it  infringes  any  one  claim,  it  is  an  in- 
fringement within  the  meaning  of  the  law.  A 
patent  may  have  a  great  many  claims,  and  a 
majority  of  them  may  have  no  bearing  on  the 
infringing  article,  but  if  a  single  one  would 
include  in  its  terms  the  thing  alleged  to  in- 
fringe, then  the  court  will  hold  that  the  pat- 
entee' s  rights  have  been  infringed. 

Each  claim  is  independent,  and  must  stand 
or  fall  of  itself.  It  is  read  and  construed  in 
connection  with  the  descriptive  part  of  the 
specification,  but  it  is  not  affected  by  the  other 
claims,  although  it  may  sometimes  be  inferred 
that  a  claim  should  not  have  a  given  meaning 
or  construction  because  another  claim  in  the 
same  patent  has  a  more  clearly  expressed 
meaning  that  is  not  consistent  with  the  pro- 
posed construction  of  the  claim.  It  must  be 
borne  in  mind  that  a  patent  does  not  cover  a 
result,  but  only  the  means  of  producing  this 
result,  whether  this  means  be  in  the  nature  of  a 
process  or  a  mechanism. 

The  first  question,  then,  which  arises  con- 
cerning an  infringement  implies  means  substan- 
tially identical  with  those  of  the  patent.  The 
two  things — that  is,  the  patented  invention  and 
the  alleged  infringement,  may  be  essentially 
different  in  many  ways,  but  the  alleged  in- 


EQUIVALENTS.  85 

fringement  has  a  function  or  mode  of  operation 
or  combination  of  elements  which  are  substan- 
tially like  those  in  the  patent,  so  that  if  the 
terms  of  the  claim  would  include  the  said  means, 
then  an  infringement  exists. 

The  infringing  article  may  not  even  have  the 
same  elements,  but  may  have  well-known 
equivalents.  Equivalent,  within  the  meaning 
of  the  patent  law,  is  anything  known  to  exist 
at  the  time  of  the  granting  of  the  patent  which 
can  be  substituted  for  a  given  part  or  parts  in 
the  patent  and  produce  the  same  effect — that  is, 
an  element  or  part  that  without  invention  can 
take  the  place  of  another  element  embodied  in 
the  claim  of  the  patent.  Well-known  examples 
of  equivalents  are  a  spring  for  a  clock  move- 
ment instead  of  a  weight,  a  gearing  for  driving 
mechanism  as  a  substitute  for  belts  and  pul- 
leys or  a  friction  wheel.  This  similarity  of 
means  being  established,  then,  the  variations  in 
shape,  size,  capacity  and  materials  are  imma- 
terial. 

It  has  been  said  that  the  identity  of  the 
alleged  infringement  with  the  patented  inven- 
tion is  not  to  be  determined  by  its  condition 
merely  at  the  time  of  its  original  construction 
— that  is  to  say,  the  infringing  thing  may  not 
closely  resemble  the  patented  invention,  but 
may,  when  put  to  use,  develop  features  that 
perform  a  function  of  the  patented  invention 


86  INFRINGEMENT  BY  CONSPIRATORS. 

by  the  same  mode  of  operation.  If  it  performs 
this  result,  then  it  will  be  held  to  be  an  infringe- 
ment. As  heretofore  mentioned,  the  patent 
grants  the  exclusive  right  of  making,  using  and 
selling  the  patented  invention,  these  words  be- 
ing intended  to  cover  every  method  by  which 
the  invention  can  be  made  valuable  by  an 
infringer,  and  any  person  who  participates  in 
any  wrongful  appropriation  of  the  invention 
becomes  an  infringer. 

Not  only  is  it  true  that  the  maker,  user  or 
seller  is  an  infringer  of  the  patented  invention, 
but  if  different  parties  conspire  to  each  make 
a  part  of  the  patented  machine  or  article  only, 
which  parts  are  intended  and  shall  thereafter 
be  combined  to  produce  the  patented  invention, 
then  each  is  held  to  be  an  infringer — that  is  to 
say,  supposing  a  claim  covers  three  pieces  of 
mechanism :  A  makes  one  piece,  B  a  second 
and  C  a  third.  These  pieces  are  sold  to  D,  who 
combines  them,  making  thus  a  complete  article. 
If  the  foregoing  has  been  done  with  the  intent 
to  defraud,  then  all  the  parties  to  the  con- 
spiracy are  infringers.  Any  person  who  par- 
ticipates in  making,  using  or  selling  is  guilty 
of  infringement,  and  liable  to  the  owner  of  the 
patent,  although  an  employee  who  simply 
works  in  connection  with  the  making,  selling 
or  using  without  intent  to  defraud  the  patentee 
is  not  liable;  but  his  employer  is.  To  consti- 


MARKING  PATENTED  AETICLE.  87 

tute  an  infringement  there  must  be  some  act  in 
derogation  of  the  patent  owner' s  rights,  and  no 
matter  how  strong  the  presumption,  it  is  not  an 
infringement  to  possess,  expose  for  sale  or  ad- 
vertise the  patented  invention.  It  must  be 
actually  made,  used  or  sold  to  constitute  an 
infringement. 

Intent. — The  matter  of  intent  is  of  some  im- 
portance where  a  person  makes  a  part  only  of 
the  invention,  because  he  does  not  infringe 
unless  he  knows  that  this  part  is  to  be  com- 
bined with  some  other  part  to  make  the  in- 
fringing act  complete,  but  the  actual  intent  of 
the  real  infringer — that  is,  one  who  makes, 
uses  or  sells  the  patented  invention  is  of  no 
importance.  He  is  supposed  to  have  notice  by 
the  publication  of  the  patent  and  by  the  mark- 
ing of  the  invention  by  the  owner  of  the  patent. 

Marking  Patented  Article.— In  order  that 
no  advantage  may  be  taken  of  the  infringer' s 
ignorance,  the  law  requires  the  patent  owner 
to  mark,  if  possible,  the  patented  invention, 
stating  that  it  is  patented  and  when  the  patent 
was  issued.  Unless  the  patented  invention,  if 
capable  of  being  marked,  is  so  marked,  the 
patent  owner  can  only  recover  damages  arising 
after  actual  notice  to  the  infringer,  and  such 
notice  must  be  proved.  Although  if  it  can  be 
proved  that  the  infringer  really  knew  that  the 
article  was  patented,  then  he  will  be  liable.  It 


88  MARKETING  AN  INVENTION. 

is  not  practicable  to  mark  an  art  or  process, 
and  therefore  the  publicity  given  by  the  publi- 
cation and  the  record  of  the  patent  in  the  Patent 
Office  is  supposed  to  be  sufficient  notice  to  the 
public. 

No  Infringement  Unless  Patent  Has 
Issued. — It  is  a  common  practice  to, market  a 
new  invention  or  an  alleged  new  invention,  and 
mark  it  " Patent  applied  for"  or  "Patent 
pending,"  which  is  a  good  practice  if  it  is 
necessary  to  market  the  invention  before  the 
patent  issues,  because  it  may  deter  others  from 
going  to  the  expense  of  engaging  in  the  manu- 
facture, use  or  sale  of  the  article,  if  they  have 
reason  to  believe  that  they  will  be  permitted  to 
do  this  for  a  short  time  only,  but  one  has  no 
remedy  for  infringement  unless  the  patent  ac- 
tually issues.  A  patent  is  a  creature  of  statute, 
and  the  patentee  has  no  legal  right  until  the 
statute  gives  it  to  him  by  the  actual  grant  and 
issue  of  a  patent,  therefore,  he  cannot  set  up 
ownership  and  proceed  against  an  infringer, 
until  he  is  in  possession  of  his  full  rights. 

Marketing  an  Invention  Before  Issue  of 
Patent. — In  this  connection  it  may  be  well  to 
call  attention  to  the  fact  that  in  some  foreign 
countries  the  patent  will  issue  to  the  first  appli- 
cant, even  if  he  is  not  the  true  inventor,  so  that 
if  a  person  has  a  valuable  article  he  takes 
chances  in  placing  it  on  the  market  in  the 


INFRINGEMENT  AFTER  EXPIRATION.  89 

United  States  before  the  issue  of  the  patent, 
and  before  he  has  applied  for  patents  in  foreign 
countries,  if  he  contemplates  making  such  ap- 
plications, for  another,  being  thus  placed  in 
possession  of  the  invention,  may  make  applica- 
tion for  and  secure  foreign  patents  thereon. 
This  subject  of  foreign  patents  and  their  value 
to  the  inventor  will  be  gone  into  fully  in  another 
chapter. 

Infringement  After  Expiration.— It  is 
a  general  rule  that  the  infringing  act  must 
be  complete  during  the  life  of  the  patent, 
but  there  is  an  exception  to  this.  The  patented 
invention  may  be  made  in  large  quantities 
secretly  during  the  life  of  the  patent  with  the 
intent  of  marketing  it  as  soon  as  the  patent  ex- 
pires. It  has  been  held  that  in  such  case  the 
infringement  is  actionable  after  the  expiration 
of  the  patent,  because  it  would  have  been  im- 
possible to  discover  it  before. 

Extends  Only  to  the  United  States.— 
As  the  patent  is  only  issued  for  the  United 
States  and  Territories,  the  infringement  must 
take  place  within  this  area  in  order  to  be  ac- 
tionable. To  make  use  of  or  to  sell  the  patented 
invention  within  this  area,  even  though  it  is  for 
sale  abroad,  is  an  infringement.  And  to  make, 
use  and  sell  the  invention  on  an  American  vessel 
sailing  on  any  seas  is  an  infringement.  But  it 
is  not  an  infringement  to  make  or  use  the  in- 


90          PUBLIC  AND  PRIVATE  CORPORATIONS. 

vention  on  foreign  vessels  if  it  is  lawfully  ob- 
tained abroad  even  thongh  they  may  be  in 
American  waters. 

Infringement  by  Government— While 
the  patent  is  granted  by  the  United  States  Gov- 
ernment, still  the  government  or  any  official 
thereof  has  no  right  to  the  invention  and  cannot 
make,  use  or  sell  it  without  liability,  though  in 
cases  of  public  emergency  the  government  may 
appropriate  the  invention,  but  it  will  have  to 
give  the  inventor  reasonable  compensation. 

Public  Corporations.— A  municipal  cor- 
poration is  liable  for  infringement  the  same  as 
a  natural  person  and  if  the  infringement  is  done 
by  officers  of  the  corporation  and  the  corpora- 
tion reaps  the  result,  it  becomes  liable  therefor. 
But  a  municipal  corporation  is  not  liable  for  an 
infringement  committed  by  a  contractor  on  its 
public  works,  nor  for  the  use  of  patented  arti- 
cles by  him,  or  the  use  by  him  of  infringing 
processes. 

Private  Corporations.— A  private  corpora- 
tion is  liable  for  infringement,  if  the  infringing 
act  is  done  by  any  of  its  agents  or  employees, 
so  long  as  the  infringement  is  done  for  the  bene- 
fit of  the  corporation  and  is  directly  or  im- 
pliedly  ratified  by  the  corporation.  To  what 
extent  the  individual  stockholders  and  officers 
share,  in  their  private  capacities,  in  the  liability 
for  infringing  acts  is  still  somewhat  of  a  ques- 


JOINT  OWNEES  OF  A  PATENT.  91 

tion  and  embraces  too  many  fine  points  to  be 
considered  in  a  work  of  this  character. 

Joint  Owners  of  a  Patent— Joint  owners 
of  a  patent  are  held  to  be  tenants  in  common  of 
the  patent  right  and  either  has  the  right  to 
make,  use  and  sell  the  patented  invention  and 
he  is  not  liable  to  his  coowners.  A  joint  owner 
may,  as  we  have  already  seen,  even  go  to  the 
extent  of  disclaiming  as  to  some  part  of  tlje 
patent  without  affecting  the  rights  of  the  others ; 
he  may  alienate  his  interests  without  the  consent 
of  the  other  joint  owners  and,  in  general,  may 
act  independently  unless  the  several  owners 
have  by  some  contract  specifically  defined  the 
relative  rights.  He  can,  in  the  absence  of  such 
contract,  make  any  license  not  exclusive  under 
the  patent  and,  in  general,  can  handle  the 
patented  invention  as  he  sees  fit  and  is  not  liable 
to  an  accounting  of  the  profits. 

Assignor,  Etc. — If  one  makes  an  assign- 
ment or  grant  of  the  entire  interest  in  the 
patent  or  the  entire  interest  for  a  certain 
territory  he  becomes  a  stranger  to  the  patent 
either  in  to  to  or  through  the  specified  ter- 
ritory and  he  is  an  infringer  if  he  makes, 
uses  or  sells  the  patented  invention,  just  as 
though  he  never  had  any  interest  in  the  patent. 
So  a  licensee  or  other  person  having  certain 
specified  rights  under  the  patent  either  to  make 
or  to  sell  or  to  use  or  to  do  all  or  any  of  these 


92  COMBINATION  CLAIMS. 

acts  in  a  specified  territory,  infringes  if  he  makes 
any  other  use  of  the  patent  than  that  which  the 
license  gives  him.  A  person  having  the  license 
to  sell  in  a  given  territory,  can  sell  in  that  terri- 
tory, even  though  he  knows  that  the  article 
sold  will  be  taken  into  other  territory  which  is 
not  included  in  his  license. 

Carriers. — A  railroad  corporation  or  other 
common  carrier  may  be  an  infringer  of  a 
patent,  not  only  by  making,  using  or  selling, 
but  if  the  carrier  conspires  with  another  to 
transport  the  patented  invention  out  of  the 
jurisdiction  of  the  United  States,  where  it 
may  be  sold,  the  carrier  is  guilty  of  infringe- 
ment. Finally,  it  may  be  stated  generally  that 
any  person,  public  or  private,  natural  or  cor- 
porate, who  makes,  uses  or  vends  a  patented 
invention  is  an  infringer  and  as  such  is  liable 
to  the  owner  of  the  patent. 

Combination  Claims. — It  has  already  been 
pointed  out  that  a  combination  claim  covers  the 
cooperating  elements  included  in  an  operative 
device,  or  if  the  claim  is  for  a  compound,  the 
combined  ingredients,  and  that,  therefore,  only 
the  combined  things  are  covered  by  the  claim, 
while  the  individual  elements  are  not  covered. 
Therefore,  if  one  leaves  out  an  element  of  the 
combination  or  adds  an  element  so  as  to  change 
the  function  of  the  combination,  he  is  not  an 
infringer,  but  if  one  substitutes  for  one  element 


ART  OR  PROCESS.  93 

a  well-known  mechanical  equivalent,  if  the  in- 
vention comprises  a  combination  of  mechanical 
elements,  he  is  an  infringer. 

Art  or  Process. — An  art  or  process  is  not 
dependent  upon  the  apparatus  by  which  it 
is  carried  into  effect  or  on  the  results  which 
it  produces ;  therefore,  the  claim  does  not 
usually  cover  any  mechanism  which  may  be 
employed  in  carrying  out  the  art  and  it  does 
not  cover  the  resulting  product  of  the  art.  An 
art  usually  consists  of  several  steps  which  are 
enumerated  in  the  claim,  and  one  to  infringe 
the  claim  must  carry  out  these  several  steps, 
for  like  leaving  out  an  element  of  a  combina- 
tion so  leaving  out  a  step  of  the  art  will  avoid 
the  claim.  To  be  an  infringer  one  must  practice 
the  whole  art,  that  is,  he  does  not  infringe  the 
claim  to  an  art  if  he  only  practices  some  of  the 
steps  in  the  claim,  or  uses  the  mechanism  de- 
scribed for  carrying  out  the  art,  or  makes  use 
of  the  result  of  the  art. 

Manufacture.— A  new  or  improved  article 
of  manufacture  is  the  new  or  improved  thing 
itself,  as  distinguished  from  a  machine  or 
means  of  making  a  manufacture,  as,  for  ex- 
ample, an  improved  chair,  a  shoe,  a  toy 
bank.  To  infringe  a  patent  on  such  an  in- 
vention, the  article  itself  or  one  substantially 
the  same  must  be  made.  The  manner  in  which 
it  is  made,  or  the  machinery  used  in  its  con- 


94  DESIGN  PATENTS. 

struction,  or  generally  even  the  material  used 
makes  no  difference.  The  actual  invention  must 
be  made,  or  used,  or  sold  to  constitute  an  in- 
fringing act. 

Composition  of  Matter.— As  before  re- 
marked, a  composition  of  matter  is  covered  by 
a  claim  which  sets  forth  the  several  ingredients 
combined  to  make  the  composition.  Such  a 
claim  is  really  then  a  combination  claim,  and 
such  a  claim  would  be  infringed  if  a  similar 
composition  is  made  or  if,  instead  of  the  in- 
gredients specified,  well-known  equivalents  for 
them  or  any  of  them  are  substituted.  So,  or- 
dinarily, leaving  out  one  of  the  ingredients  or 
adding  an  element,  if  the  latter  really  changes 
the  nature  of  the  composition,  will  avoid  the 
claim. 

Design  Patents. — Design  patents  relate  to 
the  shape,  configuration  or  ornamentation  of 
the  thing  and  the  claim  refers  to  the  appearance 
of  the  invention  rather  than  to  its  composition 
or  structure.  If  a  similar  invention  is  made,  it 
infringes  the  patent  on  the  design,  and  whether 
or  not  the  invention  is  similar  is  not  so  much  a 
matter  of  expert  testimony  as  of  ordinary  opin- 
ion. If  the  alleged  infringement  so  closely  re- 
sembles the  patented  design  that  an  ordinary 
person  would  be  deceived  and  would  purchase 
it  for  the  patented  design,  it  is  an  infringement. 

Remedies  for  Infringement —To  go  in  de- 


REMEDIES  FOB  INFRINGEMENT.  95 

tail  into  the  remedies  for  infringements  would 
necessitate  an  exhaustive  consideration  of  the 
nature  and  title  of  patents,  the  jurisdiction  of 
courts,  the  character  of  pleadings,  the  compe- 
tency of  witnesses  and  a  hundred  other  things 
which  are  not  within  the  scope  of  this  work. 
The  law  provides  ample  remedies  for  infringe- 
ment and  any  competent  lawyer  will  know  how 
to  proceed  according  to  the  facts  in  each  par- 
ticular case.  He  will  usually  bring  an  action 
in  equity  before  a  competent  court  and  ask  for 
an  injunction  to  restrain  the  infringer  from 
using  the  patented  invention  and  that  the  in- 
fringer be  compelled  to  render  an  accounting. 
A  preliminary  injunction  is  not  usually  granted 
unless  the  patent  in  issue  has  been  already  liti- 
gated and  sustained.  In  equity  cases,  the  court, 
after  considering  the  testimony,  decides  whether 
or  not  there  is  an  infringement,  and  if  there  is 
an  infringement,  grants  an  injunction  restrain- 
ing the  defendant  from  further  infringements, 
and  orders  an  accounting,  during  which  pro- 
ceeding it  is  ascertained  as  nearly  as  possible 
how  much  the  patent  owner  has  been  damaged, 
and  the  court  can,  in  its  discretion,  increase  the 
actual  damages  and  award  costs  to  either  party 
or  divide  the  costs  as  it  sees  fit  and  proper. 


96 


CHAPTER  VII. 

TKADE-MAKKS,    FEINTS   AND   LABELS. 

One  who  has  followed  the  Official  Gazette  of 
the  Patent  Office  for  several  years  must  have 
noticed  the  increase  in  the  number  of  trade- 
marks registered.  The  registration  of  a  trade- 
mark is  to  a  certain  extent  in  the  nature  of  a 
patent,  that  is  to  say,  the  government  issues  to 
the  owner  of  the  trade-mark,  a  certificate  of 
registration  under  the  seal  of  the  Department  of 
the  Interior  and  signed  by  the  Commissioner  of 
Patents,  which  is  prima  facie  evidence  that  the 
owner  has  an  exclusive  right  to  the  use  of  the 
mark  for  a  term  of  thirty  years  with  the  privi- 
lege of  renewal.  The  right  to  the  trade- mark 
is  practically  perpetual  and  the  value  of  the 
trade-mark  increases  with  its  years.  Unlike  a 
patented  improvement  or  invention,  the  trade- 
mark is  not  superseded  by  improvements,  but, 
as  just  remarked,  its  value  constantly  grows  if 
the  goods  to  which  it  is  applied  are  of  any  value. 
Unlike  the  inventor,  too,  the  owner  of  the  trade- 
mark is  not  obliged  to  make  a  race  for  the 
Patent  Office  and  put  in  an  early  application  to 


TBADE-MARK  DEFINED.  97 

protect  his  rights,  and  his  right  outside  of  the 
right  of  registration  is  not  one  of  statute,  but  is 
a  common  law  right.  Therefore,  a  person  can 
bring  a  suit  for  infringement  of  a  trade-mark  in 
the  courts  of  any  state  or  territory  in  the  Union. 

What  is  a  Trade-Mark. — A  trade-mark  is 
some  distinguishing  mark  which  a  person  places 
on  his  goods  or  on  the  package  containing  the 
goods  to  distinguish  them  from  the  goods  of 
others.  The  trade- mark  must  be  appropriated 
by  the  owner  or  it  may  be  purchased  from 
an6ther,  and  in  such  case  it  goes  with  the  busi- 
ness and  good  will  so  far  as  the  particular  de- 
scription of  the  goods  is  concerned. 

Characteristics  of  a  Trade-Mark.— A  per- 
son can  adopt  a  trade-mark  for  any  line  of  goods 
and  it  may  be  in  the  nature  of  any  distinguish- 
ing mark,  such  as  an  emblem,  the  figure  of  a 
bird,  or  even  a  number,  the  peculiar  arrange- 
ment of  colored  matter  on  a  label  or  package,  the 
arrangement  of  certain  colored  threads  in  a 
fabric,  if  the  mark  be  applied  to  a  fabric,  and, 
in  fact,  any  distinguishing  mark  whatever,  so 
long  as  it  is  unique  and  arbitrary  or  fanciful, 
and  original,  either  with  the  user  or  with  those 
from  whom  he  derives  his  title. 

It  is  a  general  rule  that  the  trade-mark  to  be 
valid  must  not  be  descriptive,  for  instance,  a 
man  might  use  the  words  "  yellow  soap  "  and 
in  such  a  case  the  word  " yellow"  would  not 


98  CHARACTERISTICS  OF  TRADE-MARK. 

be  a  trade-mark,  as  it  would  be  either  descrip- 
tive of  the  soap  or  a  palpable  untruth,  so  that 
it  would  not  be  valid  in  either  case.  It  is  evi- 
dent that  no  one  should  have  an  exclusive  right 
to  the  use  of  a  descriptive  adjective.  One  might 
use  the  word  "Gold"  soap  and  the  word 
"Gold"  would  probably  be  registered,  as  it 
would  not  be  descriptive  of  the  soap,  but  would 
be  suggestive  of  its  good  qualities  and  possibly 
of  its  color.  One  could  not  appropriate  the 
word ' '  Best "  as  a  trade-mark,  because  his  goods 
might  not  be  the  best  and  the  mark  would  sim- 
ply indicate  their  character  or  quality.  In  a 
very  recent  case,  the  Commissioner  of  Patents 
held  the  words  "Bromo  Soda  Mint"  to  be  de- 
scriptive and  therefore  non-registrable,  because 
soda  mint  is  a  well-known  article  and  any  one 
would  gather  from  reading  the  title  that  soda- 
mint  was  combined  with  bromin  or  bromid. 
The  courts  might  not  hold  such  matter  to  be 
descriptive,  but  so  far  as  this  question  is  con- 
cerned, the  criterion  is  this :  Is  the  alleged  trade- 
mark merely  descriptive  of  some  quality,  color 
or  other  characteristic  of  the  goods  or  is  it 
merely  suggestive  ?  One  has  a  right  to  select  a 
word  for  his  trade-mark  which  is  suggestive 
and  perhaps  this  is  often  the  best  kind  of  a 
mark  for  particular  kinds  of  goods,  but  it  must 
not  be  descriptive. 
A  very  common  trade-mark  is  the  word 


CHAKACTEBISTTCS  OF  TKADE-MAKK.  99 

"  Royal "  as  indicative  of  goods  of  the  highest 
character.  The  word  "  Queen"  is  often  used 
for  a  similar  reason  and  both  words  have  been 
repeatedly  held  good  trade-marks.  Sometimes 
a  person  adopts  a  word  which  is  really  descrip- 
tive but  is  used  in  a  foreign  form,  that  is,  a 
foreign  word,  purely  descriptive,  is  taken,  with- 
out change  into  the  English  and  used  as  a 
trade-mark,  but  such  a  mark  has  been  held  as 
not  valid,  because  a  person  who  understood  the 
meaning  of  it  would  see  that  it  was  just  as  de- 
scriptive as  if  used  in  English.  Sometimes 
words  which  are  descriptive  are  combined  in  a 
single  word.  Such  words  do  not  usually  make 
a  valid  trade-mark,  but  they  are  frequently 
phonetically  and  fancifully  spelled  and  in  such 
cases  they  are  usually  a  valid  trade-mark.  De- 
scriptive words  are  used  in  some  instances  in 
connection  with  a  figure  or  emblem,  and  in  such 
case  the  whole  may  be  a  valid  trade-mark,  but 
it  is  rather  the  figure  or  emblem  which  lends 
validity  to  the  mark  than  the  arrangement  of 
the  words.  One  can  use  an  arbitrarily  selected 
word  which  is  a  common  word,  so  long  as  it  is 
not  descriptive  of  the  article  or  is  not  a  geo- 
graphical word.  But  one  cannot  use  a  word 
even  though  it  is  not  descriptive  or  geographical 
but  is  suggestive,  if  it  suggests  something  which 
is  not  true  in  fact ;  that  is  to  say,  one  might 
use  some  suggestive  term  which  would  indicate 


100  GEOGRAPHICAL  NAME. 

that  the  article  on  which  the  mark  was  used  was 
made  of  fruit  when  as  a  matter  of  fact  no  part 
of  fruit  composition  entered  into  the  article 
and  in  such  case  the  trade-mark  would  be  de- 
ceptive and  hence  fraudulent  and  invalid. 

Geographical  Name.— One  has  no  exclusive 
right  to  use  a  geographical  name,  although  it 
may  happen  that  the  word  may  have  a  popular 
meaning  which  is  out  of  all  proportion  to  its 
geographical  meaning.  Take  the  well-known 
term  Trilby,  made  popular  by  Du  Maurier.  It 
is  thought  that  there  are  several  insignificant 
towns  somewhere  in  the  West  which  have  been 
given  this  name.  If  there  are  it  would  be 
wrong,  of  course,  to  deprive  one  who  did  not 
live  in  the  town  from  the  use  of  the  term  as  a 
trade- mark,  because  a  vast  majority  seeing  it 
would  associate  the  word  with  the  novel  and 
never  think  of  the  town.  But,  generally  speak- 
ing, the  rule  is  that  a  geographical  name  is  not 
a  valid  trade-mark ;  for  example,  it  would  be  a 
great  wrong  to  allow  a  person  to  have  the  sole 
right  to  use  the  word  "  New  York  "  when  there 
might  be  thousands  of  others  located  in  New 
York  making  similar  lines  of  goods. 

Registration  of  Trade-Mark.— The  pro- 
prietor or  owner  of  a  trade-mark,  whether  it  be 
a  person,  firm  or  corporation,  has  a  common  law 
right  to  the  use  of  the  mark,  which  right  can 
be  enforced  in  the  ordinary  courts,  but  the  ob- 


REQUISITES  OF  TRADE-MARKS.  101 

ject  of  registration  is  to  give  the  Federal  Courts 
jurisdiction  in  trade-mark  cases  and  make  an 
easier  remedy  for  infringement  of  the  mark. 
This  seems  rather  necessary  in  view  of  the  fact 
that  there  are  so  many  States  in  the  Union  so 
intimately  associated  in  trade  matters.  A  per- 
son can  register  his  mark  as  soon  as  it  is  in  law- 
ful use,  but  it  is  not  necessary  for  him  to  do  so, 
for  if  he  and  those  from  whom  he  derived  title 
have  used  the  mark  for  one  hundred  years,  his 
right  to  registration  will  be  so  much  the  better. 
But  in  view  of  the  practice  and  the  necessity 
which  may  arise  to  protect  his  mark  it  is  ad- 
visable to  have  the  trade-mark  registered  in  the 
Patent  Office.  Not  only  for  this  reason,  but  for 
the  further  reason  that  if  the  trade-mark  is  regis- 
tered and  the  certificate  issued  for  it,  the  mat- 
ter is  given  more  publicity  and  there  will  be 
less  liability  of  infringement  by  an  innocent 
user  of  the  mark. 

Certain  Requisites  of  Trade-Marks.— A 
trade-mark  is  unlike  a  patented  article  in  many 
ways  as  already  stated  and,  further,  in  this, 
that  under  the  United  States  law,  the  owner  of 
a  patent  is  not  obliged  to  put  his  patented  in- 
vention in  use  to  maintain  his  right  to  the  patent, 
but  a  trade-mark  is  good  only  so  long  as  it  is 
used,  and  it  must  be  used  continuously  by  the 
owner  in  business.  He  need  not  make  sales  of 
goods  bearing  his  trade-mark  every  day  or 


102  VALID  ONLY  ON  CERTAIN  GOODS. 

every  week  or  every  month,  but  he  must  have 
it  in  constant  use  and  must  have  for  sale  the 
goods  bearing  the  trade- mark.  If  he  neglects 
for  any  unreasonable  time  to  use  the  mark  he 
thereby  forfeits  the  right  to  the  same  and  an- 
other person  can  adopt  it  for  the  same  line  of 
goods. 

Trade-Mark  Valid  Only  on  Certain 
Goods.— A  trade-mark  is  valid  only  on  the 
goods  on  which  it  is  actually  used.  If  a  person 
dealing  in  groceries  uses  the  word  "Star"  or 
the  representation  of  a  star  on  canned  goods, 
but  does  not  use  it  on  other  articles,  he  can  then 
maintain  his  right  to  the  mark  only  on  canned 
goods,  and  another  person  can  use  the  same  on 
starch,  sugar,  flour,  or  other  groceries  or  goods. 
If  a  person  actually  uses  the  mark  on  a  variety 
of  goods,  he  is  entitled  thereby  to  the  exclusive 
use  of  the  mark  on  such  goods,  but  on  these 
only.  A  person  may  have  a  trade-mark  for 
cotton  goods,  but  this  will  not  prevent  another 
person  from  using  the  identical  mark  on  wool- 
ens, another  on  silks,  etc.  To  entitle  a  person 
to  registration  of  his  trade-mark,  there  is  a 
foolish  provision  of  our  law,  which  will  prob- 
ably soon  be  changed,  or  at  least  should  be, 
which  requires  the  proprietor  or  owner  of  the 
mark  to  make  oath  that  he  uses  the  trade-mark 
in  foreign  commerce  or  in  trade  with  an  Indian 
tribe,  before  he  is  entitled  to  registration.  As 


INTERFERING  TRADE-MARKS.  103 

cur  commerce  is  chiefly  interstate,  the  absurdity 
of  this  requirement  is  manifest.  Persons  own- 
ing a  valid  trade-mark  and  wishing  to  register 
it,  therefore,  must,  before  doing  so,  use  their 
mark  to  a  certain  extent  in  one  of  the  ways 
above  stated,  that  is,  he  must  sell  goods  bearing 
the  mark  to  an  Indian  tribe  or  ship  them  com- 
mercially to  Canada,  England,  or  some  other 
foreign  country. 

Interfering  Trade-Marks.— The  rule  as  to 
interferences  in  trade-mark  applications,  so  far 
as  the  question  of  registration  is  concerned,  is 
practically  the  same  as  to  interferences  between 
patent  applications,  but  the  question  as  to 
whether  or  not  one  has  been  diligent  in  register- 
ing does  not  usually  enter  into  the  case.  The 
person  who  is  the  first  bona  fide  and  continuous 
user  is  the  one  entitled  to  registration.  For  ex- 
ample, suppose  that  a  person  applies  for  regis- 
tration for  a  trade-mark  which  would  be  regis- 
tered were  it  not  for  the  fact  that  some  other 
person  had  appropriated  the  mark  for  the  same 
line  of  goods  and  had  already  registered  the  mark 
in  the  Patent  Office.  This  registration  may  have 
taken  place  years  before,  but  if  the  second 
applicant  makes  an  affidavit  that  his  trade-mark 
has  been  in  constant  use  since  a  time  antedating 
the  alleged  use  by  the  registrant,  he  can  be 
placed  in  interference  with  the  registrant,  and 
then  proceedings  will  be  instituted  to  determine 


104  VALUE  OF  TRADE-MAKES. 

who  was  really  the  first  and  continuous  user 
and  to  him  will  be  given  the  decision.  If  the 
second  applicant  proves  to  be  the  first  and 
lawful  user,  then  registration  will  be  granted 
him,  notwithstanding  the  fact  that  registration 
has  already  been  granted  to  another. 

Value  of  Trade-Marks.— In  European  coun- 
tries there  are  trade-marks  existing  which  have 
been  in  use  for  generations  and  which  have 
come  to  be  of  immense  value  and  this  is  getting 
to  be  the  case  in  America.  As  a  country  grows 
older  and  commerce  more  extensive,  the  value 
of  some  distinguishing  mark  on  some  certain 
line  of  goods  becomes  greater  and  greater. 
There  are  already  hundreds  of  trade-marks  used 
in  the  United  States  which  are  of  almost  fabu- 
lous value,  and  it  is  not  unusual  for  a  trade- 
mark to  be  worth  more  than  a  valuable  patent. 
It  behooves  a  person,  then,  who  is  manufac- 
turing good  goods  and  proposes  to  continue 
such  manufacture,  to  adopt  some  good  mark, 
if  he  has  not  already  done  so,  and  have  this 
mark  registered  in  the  Patent  Office.  After  a 
time,  people  in  the  trade  will  then  call  for  such 
a  brand  of  goods  and  this  brand  eventually 
becomes  extremely  valuable  and  identified  with 
the  manufacturer.  There  is  a  chance  for  great 
discrimination  in  the  adoption  of  a  trade-mark 
and  one  who  gets  a  happy  idea  and  adopts  a 
valid  and  unique  mark  is  at  once  in  possession 


CONCERNING  INFRINGEMENT.  105 

of  something  which  will  materially  assist  in 
making  his  business  a  success. 

What  is  an  Infringement  of  a  Trade- 
Mark.— If  the  trade-mark  is  a  word,  it  is 
infringed  by  one,  other  than  the  owner,  who 
uses  a  word  so  similar  that  an  ordinary  person 
would  be  deceived  and  so  buy  the  infringing 
article  in  mistake  for  the  real  one.  It  has  been 
held  also  that  if  the  word  does  not  in  appear- 
ance resemble  the  trade-mark  very  closely,  but 
has  a  similar  sound  when  spoken,  then  it  is  also 
an  infringement.  If  the  trade-mark  is  some- 
thing other  than  a  word,  it  is  infringed  by  any- 
thing which  so  closely  resembles  it  as  to  deceive 
the  ordinary  purchaser  and  lead  him  to  mistake 
one  for  the  other.  The  purchaser  is  not  ex- 
pected to  use  more  than  ordinary  care  or  to 
make  any  special  examination,  but  if  under 
ordinary  circumstances  he  would  mistake  one 
article  for  the  other,  then  one  is  an  infringe- 
ment of  the  other  mark. 

Remedies  for  Infringement.— The  reme- 
dies for  infringing  a  trade-mark  are  practically 
like  those  for  infringement  of  a  patent  right, 
except  that  the  trade  mark  owner  can  apply  to 
either  the  Federal  or  State  courts,  according  to 
whether  or  not  the  trade-mark  has  been  regis- 
tered. If  he  proves  infringement  he  can 
get  an  injunction  restraining  the  inf ringer  from 
the  use  of  the  trade-mark  and  can  also  recover 


]06  PKINTS  AND  LABELS. 

damages  according  to  the  circumstances  of  the 
case. 

Prints  and  Labels.— The  word  print,  as 
used  in  the  act  providing  for  registration,  is  de- 
nned as  :  '  'An  artistic  representation  or  intel- 
lectual production,  not  borne  by  an  article  of 
manufacture  or  vendible  commodity,  but  in 
some  fashion  pertaining  thereto,  such,  for  in- 
stance, as  an  advertisement  thereof." 

A  print  is  registrable  both  in  the  Patent 
Office  and  with  the  Librarian  of  Congress,  ac- 
cording to  whether  it  belongs  to  an  article  of 
manufacture  in  the  one  case  or  pictorial  illus- 
trations or  works  connected  with  the  fine  arts 
in  the  other.  A  print  to  be  registered  in  the 
Patent  Office  must  relate  or  belong  to,  but  not 
be  borne  by,  an  article  of  manufacture  or  ven- 
dible commodity.  No  prints  were  registered  in 
the  Patent  Office  prior  to  1893,  and  less  than 
one  hundred  had  been  registered  up  to  and  in- 
cluding 1898. 

The  word  "label,"  as  referred  to  in  the  act 
relating  to  prints  and  labels,  is  defined  as :  "An 
artistic  representation  or  intellectual  production 
impressed  or  stamped  directly  on  the  article  of 
manufacture,  or  upon  a  slip  or  piece  of  paper 
or  other  material  to  be  attached  in  any  manner 
to  the  manufactured  articles,  or  to  bottles, 
boxes  and  packages  containing  them,  to  indicate 
the  contents  of  the  package,  the  name  of  the 


FEINTS  AND  LABELS.  107 

manufacturer  or  the  place  of  manufacture,  the 
quality  of  goods,  directions  for  use,  etc."  By 
articles  of  manufacture  to  which  labels  are 
applicable  is  meant  all  vendible  commodities 
produced  by  hand,  by  machinery  or  by  art. 
No  label  can  be  registered  in  the  Patent  Office 
unless  it  properly  belongs  to  and  is  to  be  borne 
by  an  article  of  commerce,  and  though  registra- 
tion of  labels  was  refused  for  several  years, 
they  began  to  be  allowed  again  in  1896. 

To  entitle  the  proprietor  of  any  print  or  label 
to  registration,  the  applicant  must  sign  the  ap- 
plication and  there  must  also  be  filed  in  the 
Patent  Office  five  copies  of  the  print  or  label,  one 
of  which,  when  the  print  or  label  is  registered,  is 
certified  under  the  seal  of  the  Commissioner  of 
Patents  and  returned  to  the  proprietor.  The 
certificate,  like  a  copyright,  continues  in  force 
for  twenty -eight  years  and  like  a  copyright  can 
be  extended  for  a  further  term  of  fourteen  years 
if  the  second  application  is  filed  within  six 
months  before  the  expiration  of  the  original 
term  and  the  other  regulations  with  regard  to 
original  applications  are  complied  with.  Within 
two  months  from  the  date  of  said  renewal,  the 
applicant  must  cause  a  copy  of  the  record 
thereof  to  be  published  for  four  weeks  in  one  or 
more  newspapers  printed  in  the  United  States. 
The  fee  for  registering  a  print  or  label  is  six 
dollars.  If  the  Examiner  at  the  Patent  Office 


108  FEINTS  AND  LABELS. 

refuses  registration,  the  applicant  can  petition 
the  Commissioner  without  fee  and  have  the 
examiner's  decision  reviewed.  Like  a  trade- 
mark, the  print  or  label  is  infringed  by  the  un- 
lawful use  of  the  print  or  label,  or  a  very 
similar  one,  by  another  than  the  owner  thereof. 
The  act  providing  for  the  registration  of 
prints  and  labels  is  construed  to  entitle  them  to 
registration  without  an  examination  as  to  their 
novelty,  but  though  registration  may  not  be  re- 
fused because  of  a  similar  print  or  label,  the 
practice  of  the  Patent  Office  is  to  require  all 
trade-mark  matter  in  the  label  to  be  first  regis- 
tered as  trade-marks. 


109 


CHAPTER  VIII. 

COPYKIGHTS. 

Many  people  have  a  notion  that  the  Copy- 
right Law  is  intended  for  the  benefit  of  inven- 
tors, tradesmen  and  manufacturers,  and  that  a 
label,  a  print,  a  trade-mark,  or  even,  sometimes, 
a  process  or  mechanism  can  be  protected  by 
copyright.  This  is  a  mistaken  idea.  The  Copy- 
right Act  is  for  the  protection  of  purely  literary 
or  artistic  productions,  as  a  book,  a  musical 
composition,  a  picture  or  a  statue.  Perhaps  the 
law,  as  published  by  the  Librarian  of  Congress, 
is,  in  this  regard,  the  best  guide,  and  is  sub- 
stantially as  follows : 

SECTION  4952. — (.  .  .  .  The)  author,  in- 
ventor, designer  or  proprietor  of  any  book, 
map,  chart,  dramatic  or  musical  composition, 
engraving,  cut,  print,  or  photograph  or  nega- 
tive thereof,  or  of  a  painting,  drawing,  chromo, 
statue,  statuary  and  of  models  or  designs 
intended  to  be  perfected  as  works  of  the  fine 
arts,  and  the  executors,  administrators  or  as- 
signs of  any  such  person  shall,  upon  complying 
with  the  provisions  of  this  chapter,  have  the 


110  COPYEIGHTS. 

sole  liberty  of  printing,  reprinting,  publishing, 
completing,  copying,  executing,  finishing  and 
vending  the  same  ;  and,  in  the  case  of  a  dra- 
matic composition,  of  publicly  performing  or 
representing  it,  or  causing  it  to  be  performed 
or  represented  by  others.  And  authors  or  their 
assigns  shall  have  exclusive  right  to  dramatize 
or  translate  any  of  their  works  for  which  copy- 
right shall  have  been  obtained  under  the  laws 
of  the  United  States.  (....) 

In  the  construction  of  this  act  the  words 
' { engraving,' '  ' '  cut ' '  and  ' '  print ' '  shall  be  ap- 
plied only  to  pictorial  illustrations  or  works 
connected  with  the  fine  arts,  and  no  prints  or 
labels  designed  to  be  used  for  any  other  articles 
of  manufacture  shall  be  entered  under  the  copy- 
right law,  but  may  be  registered  in  the  Patent 
Office.  And  the  Commissioner  of  Patents  is 
hereby  charged  with  the  supervision  and  con- 
trol of  the  entry  or  registry  of  such  prints  or 
labels,  in  conformity  with  the  regulations  pro- 
vided by  law  as  to  copyright  of  prints,  except 
that  there  shall  be  paid  for  recording  the  title 
of  any  print  or  label,  not  a  trade-mark,  six 
dollars,  which  shall  cover  the  expense  of  fur- 
nishing a  copy  of  the  record,  under  the  seal  of 
the  Commissioner  of  Patents,  to  the  party  en- 
tering the  same.  (.  .  .  .) 

Copyrights  are  granted  for  the  term  of  twenty- 
eight  years  from  the  time  of  recording  the  title 


COPYRIGHTS.  Ill 

thereof,  and  in  the  manner  hereinafter  directed, 
and  within  six  months  before  the  expiration  of 
the  first  term,  the  author,  inventor  or  designer, 
if  he  be  still  living,  can  renew  the  copyright  for 
the  further  term  of  fourteen  years,  or,  if  he  be 
dead,  his  widow  or  children  shall  have  the 
exclusive  right  to  the  copyright,  and  can  get  a 
continuance  thereof.  Copyrights  carry  the  ex- 
clusive right  to  the  property  covered,  and  are 
assignable  in  law  and  by  a  suitable  instrument 
in  writing,  and  the  assignment  must  be  recorded 
in  the  office  of  the  Librarian  of  Congress  within 
sixty  days  after  its  execution.  If  it  is  not  so 
recorded,  it  will  be  void  as  against  any  subse- 
quent purchaser  or  mortgagee,  for  a  valuable 
consideration,  who  has  no  notice  of  the  pre- 
vious assignment.  Before  the  copyright  is 
complete,  it  is  necessary  to  make  a  deposit 
with  the  Librarian  of  Congress  of  the  title  or 
description,  also  to  deposit  two  copies  of  the 
complete  thing  in  its  best  form  when  first  pub- 
lished, and  if  the  owner  of  the  copyright  is  a 
foreign  resident  outside  of  the  United  States, 
the  production,  if  printed,  must  be  from  type 
set  within  the  United  States.  The  copyrighted 
matter  cannot  be  imported,  except  in  a  few 
instances,  which  will  be  hereinafter  given.  As 
to  these  details,  Section  4956  of  the  Revised 
Statutes  is  very  specific,  and  is  as  follows : 
SECTION  4956. — "No  person  shall  be  entitled 


112  COPYRIGHTS. 

to  a  copyright  unless  lie  shall,  on  or  before  the 
day  of  publication,  in  this  or  any  foreign  coun- 
try, deliver  at  the  office  of  the  Librarian  of 
Congress,  or  deposit  in  the  mail  within  the 
United  States,  addressed  to  the  Librarian  of 
Congress,  at  Washington,  District  of  Columbia, 
a  printed  copy  of  the  title  of  the  book,  map, 
chart,  dramatic  or  musical  composition,  en- 
graving, cut,  print,  photograph  or  chromo,  or 
a  description  of  the  painting,  drawing,  statue, 
statuary,  or  a  model  or  design,  for  a  work  of 
the  fine  arts,  for  which  he  desires  a  copyright ; 
nor  unless  he  shall  also,  not  later  than  the  day 
of  the  publication  thereof,  in  this  or  any  foreign 
country,  deliver  at  the  office  of  the  Librarian  of 
Congress,  at  Washington,  District  of  Columbia, 
or  deposit  in  the  mail,  within  the  United  States, 
addressed  to  the  Librarian  of  Congress,  at 
Washington,  District  of  Columbia,  two  copies 
of  such  copyright  book,  map,  chart,  dramatic 
or  musical  composition,  engraving,  chromo, 
cut,  print  or  photograph,  or  in  case  of  a  paint- 
ing, drawing,  statue,  statuary,  model  or  design 
for  a  work  of  the  fine  arts,  a  photograph  of  the 
same,  provided  that  in  the  case  of  a  book, 
photograph,  chromo  or  lithograph,  the  two 
copies  of  the  same  required  to  be  delivered  or 
deposited  as  above,  shall  be  printed  from  type 
set  within  the  limits  of  the  United  States,  or 
from  plates  made  therefrom,  or  from  negatives, 


COPYRIGHTS.  113 

or  drawings  on  stone  made  within  the  limits  of 
the  United  States,  or  from  transfers  made  there- 
from. During  the  existence  of  such  copyright 
the  importation  into  the  United  States  of  any 
book,  chromo,  lithograph  or  photograph,  so 
copyrighted,  or  any  edition  or  editions  thereof, 
or  any  plates  of  the  same  not  made  from  type 
set,  negatives,  or  drawings  on  stone  made 
within  the  limits  of  the  United  States,  shall  be, 
and  is  hereby  prohibited,  except  in  the  cases 
specified  in  paragraphs  512  to  516,  inclusive,  in 
section  two  of  the  act  entitled,  i '  An  act  to  re- 
duce the  revenue  and  equalize  the  duties  on 
imports  and  for  other  purposes,"  approved 
October  1st,  1890  ;(.  .  .  .)  and  except  in  the 
case  of  persons  purchasing  for  use,  and  not  for 
sale,  who  import,  subject  to  the  duty  thereon,  not 
more  than  two  copies  of  such  book  at  any  one 
time ;  and  except  in  the  case  of  newspapers 
and  magazines,  not  containing  in  whole  or  in 
part  matter  copyrighted  under  the  provisions 
of  this  act,  unauthorized  by  the  author,  which 
are  hereby  exempted  from  prohibition  of  im- 
portation, provided,  nevertheless,  that  in  the 
case  of  books  in  foreign  languages,  of  which 
only  translations  in  English  are  copyrighted, 
the  prohibition  of  importation  shall  apply  only 
to  the  translation  of  the  same,  and  the  importa- 
tion of  the  books  in  the  original  language  shall 
be  permitted."  (.  .  .  .)  The  exceptions 


114  COPYRIGHTS. 

above  referred  to,  being  included  in  paragraphs 
512  to  516,  are  these  : 

512.  Books,  engravings,  photographs,  bound 
or  unbound  etchings,  maps  and  charts,  which 
shall  have  been  printed  and  bound  or  manufac- 
tured more  than  twenty  years  at  the  date  of 
importation. 

513.  Books  and   pamphlets   printed    exclu- 
sively in  languages  other  than  English ;  also 
books  and  music,  in  raised  print,  used  exclu- 
sively by  the  blind. 

514.  Books,  engravings,   photographs,  etch- 
ings, bound  or  unbound,  maps  and  charts  im- 
ported by  authority  or  for  the  use  of  the  United 
States  or  for  the  use  of  the  Library  of  Congress. 

515.  Books,  maps,   lithographic  prints  and 
charts,  especially  imported,  not  more  than  two 
copies  in  any  one  invoice,  in  good  faith,  for  the 
use  of  any  society  incorporated  or  established 
for  educational,  philosophical,  literary  or  re- 
ligious purposes,  or  for  encouragement  of  the 
fine  arts,  or  for  the  use  or  by  order  of  any 
college,  academy,  school  or  seminary  of  learn- 
ing in  the  United  States,  subject  to  such  regu- 
lations as  the  Secretary  of  the  Treasury  shall 
prescribe. 

516.  Books,  or  libraries,  or  parts  of  libraries, 
and  other  household  effects  of  persons  or  fami- 
lies from   foreign  countries,  if  actually  used 
abroad  by  them  not  less  than  one  year,  and  not 


COPYBIGHTS.  115 

intended  for  any  other  person  or  persons,  nor 
for  sale.  (51st  Congress,  1st  Session,  chap. 
1244 ;  26  Statutes  at  Large,  p.  604.) 

SECTION  4957. — The  Librarian  of  Congress 
shall  record  the  name  of  such  copyright  book, 
or  other  article,  forthwith  in  a  book  to  be  kept 
for  that  purpose,  in  the  words  following : 
" Library  of  Congress,  to  wit:  Be  it  remem- 
bered that  on  the  day  of A.  B.,  of 

,  hath  deposited  in  this  office  the  title  of  a 

book  (map,  chart,  or  otherwise,  as  the  case  may 
be,  or  description  of  the  article),  the  title  or  de- 
scription of  which  is  in  the  following  words,  to 
wit:  (here  insert  the  title  or  description)  the 
right  whereof  he  claims  as  author  (originator 
or  proprietor,  as  the  case  may  be),  in  confor- 
mity with  the  laws  of  the  United  States  respect- 
ing copyrights.  C.  D.,  Librarian  of  Congress." 
And  he  shall  give  a  copy  of  the  title  or  descrip- 
tion, under  the  seal  of  the  Librarian  of  Congress, 
to  the  proprietor,  whenever  he  shall  require  it. 

SECTION  4958.— The  Librarian  of  Congress 
shall  receive  from  the  persons  to  whom  the  ser- 
vices designated  are  rendered,  the  following 
fees : 

1.  For  recording  the  title  or  description  of 
any  copyright  book  or  other  article,  fifty  cents. 

2.  For  every  copy  under  seal  of  such  record 
actually  given  to  the  person  claiming  the  copy- 
right, or  his  assigns,  fifty  cents. 


116  COPYRIGHTS. 

3.  For  recording  and  certifying  any  instru- 
ment of  writing  for  the  assignment  of  a  copy- 
right, one  dollar. 

4.  For  every  copy  of   an  assignment,   one 
dollar. 

All  fees  so  received  shall  be  paid  into  the 
treasury  of  the  United  States  :  Provided,  That 
the  charge  for  recording  the  title  or  description 
of  any  article  entered  for  copyright,  the  pro- 
duction of  a  person  not  a  citizen  or  resident  of 
the  United  States,  shall  be  one  dollar,  to  be  paid 
as  above  into  the  treasury  of  the  United  States, 
to  defray  the  expenses  of  lists  of  copyrighted 
articles  as  hereinafter  provided  for. 

And  it  is  hereby  made  the  duty  of  the 
Librarian  of  Congress  to  furnish  to  the  Secre- 
tary of  the  Treasury  copies  of  the  entries  of 
titles  of  all  books  and  other  articles  wherein  the 
copyright  has  been  completed  by  the  deposit  of 
two  copies  of  such  book  printed  from  type  set 
within  the  limits  of  the  United  States,  in  accor- 
dance with  the  provisions  of  this  act  and  by  the 
deposit  of  two  copies  of  such  other  article  made 
or  produced  in  the  United  States ;  and  the 
Secretary  of  the  Treasury  is  hereby  directed  to 
prepare  and  print,  at  intervals  of  not  more  than 
a  week,  catalogues  of  such  title-entries  for  dis- 
tribution to  the  collectors  of  customs  of  the 
United  States  and  to  the  postmasters  of  all  post 
offices  receiving  foreign  mails,  and  such  weekly 


COPYEIGHTS.  117 

lists,  as  they  are  issued,  shall  be  furnished  to 
all  parties  desiring  them,  at  a  sum  not  exceed- 
ing five  dollars  per  annum  ;  and  the  Secretary 
and  the  Postmaster-General  are  hereby  empow- 
ered and  required  to  make  and  enforce  such 
rules  and  regulations  as  shall  prevent  the  im- 
portation into  the  United  States,  except  upon 
the  conditions  above  specified,  of  all  articles 
prohibited  by  this  act. 

SECTION  4959. — The  proprietor  of  every  copy- 
right book  or  other  article  shall  deliver  at  the 
office  of  the  Librarian  of  Congress,  or  deposit  in 
the  mail,  addressed  to  the  Librarian  of  Congress, 
at  Washington,  District  of  Columbia,  (....) 
a  copy  of  every  subsequent  edition  wherein  any 
substantial  changes  shall  be  made :  Provided, 
however,  That  the  alterations,  revisions  and 
additions  made  to  books  by  foreign  authors, 
heretofore  published,  of  which  new  editions 
shall  appear  subsequently  to  the  taking  effect 
of  this  act,  shall  be  held  and  deemed  capable  of 
being  copyrighted  as  above  provided  for  in  this 
act,  unless  they  form  a  part  of  the  series  in 
course  of  publication  at  the  time  this  act  shall 
take  effect. 

SECTION  4960. — For  every  failure  on  the  part 
of  the  proprietor  of  any  copyright  to  deliver, 
or  deposit  in  the  mail,  either  of  the  published 
copies,  or  description,  or  photograph,  required 
by  Sections  4956  and  4959,  the  proprietor  of  the 


118  COPYEIGHTS. 

copyright  shall  be  liable  to  a  penalty  of  twenty- 
five  dollars,  to  be  recovered  by  the  Librarian  of 
Congress,  in  the  name  of  the  United  States,  in 
an  action  in  the  nature  of  an  action  of  debt,  in 
any  district  court  of  the  United  States  within 
the  jurisdiction  of  which  the  delinquent  may 
reside  or  be  found. 

SECTION  4961. — The  postmaster  to  whom  such 
copyright  book,  title,  or  other  article  is  deliv- 
ered shall,  if  requested,  give  a  receipt  there- 
for ;  and  when  so  delivered,  he  shall  mail  it  to 
its  destination. 

SECTION  4962. — No  person  shall  maintain  an 
action  for  the  infringement  of  his  copyright  un- 
less he  shall  give  notice  thereof  by  inserting  in 
the  several  copies  of  every  edition  published, 
on  the  title-page,  or  the  page  immediately  fol- 
lowing, if  it  be  a  book;  or  if  a  map,  chart,  mu- 
sical composition,  print,  cut,  engraving,  photo- 
graph, painting,  drawing,  chromo,  statue,  stat- 
uary, or  model  or  design  intended  to  be 
perfected  and  completed  as  a  work  of  the 
fine  arts,  by  inscribing  upon  some  visible  por- 
tion thereof,  or  of  the  substance  on  which  the 
same  shall  be  mounted,  the  following  words, 
viz:  "Entered  according  to  act  of  Congress,  in 

the  year  ,  by  A.  B.,  in  the  oifice  of  the 

Librarian  of  Congress,  at  Washington";  or,  at 
his  option,  the  word  "Copyright,"  together 
with  the  year  the  copyright  was  entered,  and 


COPYKIGHTS.  119 

the  name  of  the  party  by  whom  it  was  taken 
out,  thus:  ' 'Copyright,  18— ,  by  A.  B."  (....) 

That  manufacturers  of  designs  for  molded 
decorative  articles,  tiles,  plaques,  or  articles  of 
pottery  or  metal  subject  to  copyright  may  put 
the  copyright  mark  prescribed  by  Section  4962 
of  the  Revised  Statutes,  and  acts  additional 
thereto,  upon  the  back  or  bottom  of  such  arti- 
cles, or  in  such  other  place  upon  them  as  it 
has  heretofore  been  usual  for  manufacturers 
of  such  articles  to  employ  for  the  placing  of 
manufacturers,  merchants,  and  trade-marks 
thereon. 

SECTION  4963.— Every  person  who  shall  insert 
or  impress  such  notice,  or  words  of  the  same 
purport,  in  or  upon  any  book,  map,  chart, 
dramatic  or  musical  composition,  print,  cut, 
engraving  or  photograph,  or  other  article, 
whether  such  article  be  subject  to  copyright  or 
otherwise,  for  which  he  has  not  obtained  a  copy- 
right, or  shall  knowingly  issue  or  sell  any  arti- 
cle bearing  a  notice  of  United  States  copyright 
which  has  not  been  copyrighted  in  this  country ; 
or  shall  import  any  book,  photograph,  chromo 
or  lithograph,  or  other  article  bearing  such  no- 
tice of  copyright  or  words  of  the  same  purport, 
which  is  not  copyrighted  in  this  country,  shall 
be  liable  to  a  penalty  of  one  hundred  dollars, 
recoverable  one-half  for  the  person  who  shall 
sue  for  such  penalty  and  one-half  to  the  use  of 


120  COPYBIGHTS. 

the  United  States  ;  and  the  importation  into  the 
United  States  of  any  book,  chromo,  lithograph 
or  photograph,  or  other  article  bearing  such 
notice  of  copyright,  when  there  is  no  existing 
copyright  thereon  in  the  United  States,  is  pro- 
hibited ;  and  the  circuit  courts  of  the  United 
States  sitting  in  equity  are  hereby  authorized 
to  enjoin  the  issuing,  publishing  or  selling  of  any 
article  marked  or  imported  in  violation  of  the 
United  States  copyright  laws,  at  the  suit  of  any 
person  complaining  of  such  violation :  Provided, 
That  this  act  shall  not  apply  to  any  importation 
of  or  sale  of  such  goods  or  articles  brought  into 
the  United  States  prior  to  the  passage  hereof. 

SECTION  4964. — Every  person  who,  after  the 
recording  of  the  title  of  any  book  and  the  de- 
positing of  two  copies  of  such  book  as  provided 
by  this  act,  shall,  contrary  to  the  provisions  of 
this  act,  within  the  term  limited,  and  without 
the  consent  of  the  proprietor  of  the  copyright 
first  obtained  in  writing,  signed  in  the  presence 
of  two  or  more  witnesses,  print,  publish,  drama- 
tize, translate  or  import,  or,  knowing  the  same 
to  be  so  printed,  published,  dramatized,  trans- 
lated or  imported,  shall  sell  or  expose  to  sale 
any  copy  of  such  book,  shall  forfeit  every  copy 
thereof  to  such  proprietor,  and  shall  also  for- 
feit and  pay  such  damages  as  may  be  recovered 
in  a  civil  action  by  such  proprietor  in  any  court 
of  competent  jurisdiction. 


COPYRIGHTS.  121 

SECTION  4965.— If  any  person,  after  the  re- 
cording of  the  title  of  any  map,  chart,  dramatic 
or  musical  composition,  print,  cut,  engraving, 
or  photograph,  or  chromo,  or  of  the  descrip- 
tion of  any  painting,  drawing,  statue,  statuary 
or  model  or  design  intended  to  be  perfected 
and  executed  as  a  work  of  the  fine  arts,  as  pro- 
vided by  this  act,  shall,  within  the  terra  limited, 
contrary  to  the  provisions  of  this  act,  and  with- 
out the  consent  of  the  proprietor  of  the  copy- 
right first  obtained  in  writing,  signed  in  pres- 
ence of  two  or  more  witnesses,  engrave,  etch, 
work,  copy,  print,  publish,  dramatize,  translate 
or  import,  either  in  whole  or  in  part,  or  by 
varying  the  main  design,  with  intent  to  evade 
the  law,  or,  knowing  the  same  to  be  so  printed, 
published,  dramatized,  translated  or  imported, 
shall  sell  or  expose  to  sale  any  copy  of  such 
map  or  other  article,  as  aforesaid,  he  shall  for- 
feit to  the  proprietor  all  the  plates  on  which  the 
same  shall  be  copied,  and  every  sheet  thereof, 
either  copied  or  printed,  and  shall  further  for- 
feit one  dollar  for  every  sheet  of  the  same  found 
in  his  possession,  either  printing,  printed,  copied, 
published,  imported  or  exposed  for  sale ;  and  in 
case  of  a  painting,  statue  or  statuary,  he  shall 
forfeit  ten  dollars  for  every  copy  of  the  same  in 
his  possession,  or  by  him  sold  or  exposed  for 
sale :  Provided,  however,  That  in  case  of  any 
such  infringement  of  the  copyright  of  a  photo- 


122  COPYRIGHTS. 

graph  made  from  any  object  not  a  work  of  fine 
arts,  the  sum  to  be  recovered  in  any  action 
brought  under  the  provisions  of  this  section 
shall  be  not  less  than  one  hundred  dollars,  nor 
more  than  five  thousand  dollars,  and,  Provided, 
further,  That  in  case  of  any  such  infringement 
of  the  copyright  of  a  painting,  drawing,  statue, 
engraving,  etching,  print,  or  model  or  design 
for  a  work  of  the  fine  arts,  or  of  a  photograph 
of  a  work  of  the  fine  arts,  the  sum  to  be  recov- 
ered in  any  action  brought  through  the  provi- 
sions of  this  section  shall  be  not  less  than  two 
hundred  and  fifty  dollars,  and  not  more  than 
ten  thousand  dollars.  One-half  of  all  the  fore- 
going penalties  shall  go  to  the  proprietors  of 
the  copyright  and  the  other  half  to  the  use  of 
the  United  States. 

SECTION  4966. — Any  person  publicly  perform- 
ing or  representing  any  dramatic  or  musical 
composition  for  which  a  copyright  has  been 
obtained,  without  the  consent  of  the  proprietor 
of  said  dramatic  or  musical  composition,  or  his 
heirs  or  assigns,  shall  be  liable  for  damages 
therefor,  such  damages  in  all  cases  to  be  as- 
sessed at  such  sum,  not  less  than  one  hundred 
dollars  for  the  first  and  fifty  dollars  for  every  sub- 
sequent performance,  as  to  the  court  shall  ap- 
pear to  be  just.  If  the  unlawful  performance 
and  representation  be  willful  and  for  profit, 
such  person  or  persons  shall  be  guilty  of  a 


COPYRIGHTS.  123 

misdemeanor,  and  upon  conviction  be  impris- 
oned for  a  period  not  exceeding  one  year.  Any 
injunction  that  may  be  granted  upon  hearing 
after  notice  to  the  defendant  by  any  circuit 
court  of  the  United  States,  or  by  a  judge 
thereof,  restraining  and  enjoining  the  perform- 
ance or  representation  of  any  such  dramatic  or 
musical  composition,  may  be  served  on  the  par- 
ties against  whom  such  injunction  may  be 
granted  anywhere  in  the  United  States,  and 
shall  be  operative  and  may  be  enforced  by  pro- 
ceedings to  punish  for  contempt  or  otherwise 
by  any  other  circuit  court  or  judge  in  the 
United  States ;  but  the  defendants  in  said  ac- 
tion, or  any  or  either  of  them,  may  make  a 
motion  in  any  other  circuit  in  which  he  or  they 
may  be  engaged  in  performing  or  representing 
said  dramatic  or  musical  composition  to  dis- 
solve or  set  aside  the  said  injunction  upon 
such  reasonable  notice  to  the  plaintiff  as  the 
circuit  court  or  the  judge  before  whom  said 
motion  shall  be  made  shall  deem  proper  ;  ser- 
vice of  said  motion  to  be  made  on  the  plaintiff 
in  person  or  on  his  attorneys  in  the  action.  The 
circuit  courts  or  judges  thereof  shall  have 
jurisdiction  to  enforce  said  injunction  and  to 
hear  and  determine  a  motion  to  dissolve  the 
same,  as  herein  provided,  as  fully  as  if  the 
action  were  pending  or  brought  in  the  circuit 
in  which  said  motion  is  made. 


124  COPYBIGHTS. 

The  clerk  of  the  court,  or  judge  granting  the 
injunction,  shall,  when  required  so  to  do  by  the 
court  hearing  the  application  to  dissolve  or  en- 
force said  injunction,  transmit  without  delay 
to  said  court  a  certified  copy  of  all  the  papers 
on  which  the  said  injunction  was  granted  that 
are  on  file  in  his  office. 

SECTION  4967. — Every  person  who  shall  print 
or  publish  any  manuscript  whatever,  without 
the  consent  of  the  author  or  proprietor  first 
obtained  (....)  shall  be  liable  to  the  author 
or  proprietor  for  all  damages  occasioned  by 
such  injury. 

SECTION  4968. — No  action  shall  be  main- 
tained in  any  case  of  forfeiture  or  penalty 
under  the  copyright  laws,  unless  the  same  is 
commenced  within  two  years  after  the  cause  of 
action  has  arisen. 

SECTION  4969. — In  all  actions  arising  under 
the  laws  respecting  copyrights  the  defendant 
may  plead  the  general  issue,  and  give  the 
special  matter  in  evidence. 

SECTION  4970. — The  circuit  courts,  and  dis- 
trict courts  having  the  jurisdiction  of  circuit 
courts,  shall  have  power,  upon  bill  in  equity, 
filed  by  any  party  aggrieved,  to  grant  injunc- 
tions to  prevent  the  violation  of  any  right  secured 
by  the  laws  respecting  copyrights,  according  to 
the  course  and  principles  of  courts  of  equity,  on 
such  terms  as  the  court  may  deem  reasonable. 


COPYRIGHTS.  125 

The  act  approved  March  3,  1891  (51st  Con- 
gress, 1st  Session,  chap.  565 ;  26  Statutes  at 
Large,  pp.  1106  1110),  in  addition  to  the  amend- 
ments, noted  above,  of  Sections  4952,  4954,  4956, 
4958,  4959,  4963,  4964,  4965  and  4967,  provides 
further  as  follows : 

"That  for  the  purpose  of  this  act  each 
volume  of  a  book  in  two  or  more  volumes, 
when  such  volumes  are  published  separately, 
and  the  first  one  shall  not  have  been  issued 
before  this  act  shall  take  effect,  and  each  num- 
ber of  a  periodical  shall  be  considered  an  inde- 
pendent publication,  subject  to  the  form  of 
copyrighting  as  above."  (Sec.  11.) 

"  This  act  shall  go  into  effect  on  the  first  day 
of  July,  Anno  Domini  eighteen  hundred  and 
ninety-one."  (Sec.  12.) 

"That  this  act  shall  only  apply  to  a  citizen 
or  subject  of  a  foreign  state  or  nation  when 
such  foreign  state  or  nation  permits  to  citizens 
of  the  United  States  of  America  the  benefit  of 
copyright  on  substantially  the  same  basis  as  its 
own  citizens ;  or  when-  such  foreign  state  or 
nation  is  a  party  to  an  international  agreement 
which  provides  for  reciprocity  in  the  granting 
of  copyright,  by  the  terms  of  which  agreement 
the  United  States  of  America  may,  at  its  pleas- 
ure, become  a  party  to  such  agreement.  The 
existence  of  either  of  the  conditions  aforesaid 
shall  be  determined  by  the  President  of  the 


126  COPYRIGHTS. 

United  States,  by  proclamation  made  from 
time  to  time  as  the  purposes  of  this  act  may 
require."  (Sec.  13.) 

The  following  is  a  list  of  foreign  countries 
with  which  the  United  States  have  established 
copyright  relations : 

July  1,  1891— Belgium,  France,  Great  Britain 
and  her  possessions,  and  Switzerland.  (Statutes 
at  Large,  vol.  27,  pp.  981,  982.) 

April  15, 1 892 — Germany.  (Statutes  at  Large, 
vol.  27,  pp.  1021,  1022.) 

October  31,  1892— Italy.  (Statutes  at  Large, 
vol.  27,  p.  1043.) 

May  8,  1893 — Denmark.  (Statutes  at  Large, 
vol.  28,  p.  1219.) 

July  20, 1893— Portugal.  (Statutes  at  Large, 
vol.  28,  p.  1222.) 

July  10, 1895— Spain.  (Statutes  at  Large,  vol. 
29,  p.  871.) 

February  27,  1896— Mexico.  (Statutes  at 
Large,  vol.  29,  p.  877.) 

May  25, 1896— Chile.  (Statutes  at  Large,  vol. 
29,  p.  880.) 

The  courts  of  the  United  States  have  jealously 
and  strictly  guarded  the  interests  of  copyright 
owners  and  are  quick  to  provide  a  remedy  in 
case  of  infringement  of  the  copyright.  The 
whole  matter  of  publication,  for  instance,  is  cov- 
ered by  the  copyrights  except  that  the  title  is 
not  covered  by  a  copyright  and  may  be  a  trade- 


COPYRIGHTS.  127 

mark,  but  the  body  of  the  publication  is  copy- 
righted and  one  who,  without  permission  of  the 
owner,  publishes  any  extended  part  of  the  mat- 
ter, either  in  the  identical  shape  or  in  a  color- 
able variation,  is  liable  as  an  infringer.  The  in- 
tent has  something  to  do  with  this,  however,  as 
a  person  may  make  use  liberally  of  quotations 
if  he  does  so  and  gives  credit  to  the  author,  that 
is  to  say,  he  cannot  make  selections  and  publish 
them  merely  as  selections  from  the  copyrighted 
work,  but  he  may  write  a  review  of  a  book,  if 
it  be  a  book,  and  make  liberal  quotations  so  as 
to  make  the  review  readable  and  intelligible. 
But  he  cannot  make  any  commercial  use  of  the 
copyrighted  matter  without  infringement,  and 
such  use  is  not  necessarily  in  publishing.  If 
the  copyrighted  matter  be  a  musical  or  dramatic 
composition,  the  owner  of  the  copyright  can 
prevent  the  public  performance  of  the  composi- 
tion either  by  speaking  or  singing,  and  even  if 
the  composition  were  memorized,  he  can  prevent 
it  from  being  spoken  and  has  an  action  for  in- 
fringement of  a  copyright  as  well  as  a  right  to 
relief  by  injunction.  In  this  connection  atten- 
tion is  called  to  Section  4966  of  the  Statutes, 
which  is  herein  referred  to  and  which  refers 
especially  to  the  questions  of  damages  and  in- 
junctions. 


128 


CHAPTER  IX, 

TITLE,    ASSIGNMENT,    GKANTS,    MOETGAGES  AND 
LICENSES. 

A  patent  is  as  much  property  as  a  piece  of 
real  estate  or  a  chattel.  It  follows  then  that, 
like  other  property,  it  may  be  sold  and  trans- 
ferred, and  this  right  is  expressly  provided  for 
by  Section  4988  of  the  Revised  Statutes.  There 
are  four  well-known  transfers  of  an  interest  in 
or  concerning  patents,  to  wit :  An  assignment, 
a  grant,  a  mortgage  and  a  license. 

Assignment.— An  assignment  transfers  the 
whole  or  an  undivided  interest  in  the  patent  for 
every  portion  of  the  United  States.  The  assign- 
ment must  be  written  or  printed  and  duly 
signed.  No  especial  form  is  required  so  long 
as  the  assignment  is  absolute  and  the  intent 
clear.  It  is  better,  however,  to  follow,  as  nearly 
as  circumstances  will  permit,  the  usual  form,  as 
this  has  become  well-known  and  its  provisions 
and  restrictions  thoroughly  understood.  It  is 
not  necessary  that  the  assignment  be  witnessed, 
sealed  or  acknowledged,  but  it  is  better  to  have 
it  witnessed,  sealed  and  acknowledged,  as 


ASSIGNMENTS.  129 

then  all  the  requirements  which  may  contin- 
gently arise  are  met,  and  it  is  especially  better 
to  follow  such  forms,  particularly  as  far  as 
acknowledgment  is  concerned,  because  it  ren- 
ders the  instrument  and  its  execution  easy  of 
proof  when  necessary.  This  applies  to  other 
conveyances  of  a  patent  as  well  as  to  assign- 
ments. 

According  to  the  Patent  Office  practice :  uAn 
assignment,  grant  or  conveyance  of  a  patent 
will  be  void  as  against  any  subsequent  purchaser 
or  mortgagee,  for  a  valuable  consideration, 
without  notice,  unless  recorded  in  the  Patent 
Office  within  three  months  from  the  date  thereof. 
If  any  such  assignment,  grant  or  conveyance  of 
any  patent  shall  be  acknowledged  before  any 
notary  public  of  the  several  States  or  Territories 
or  the  District  of  Columbia  or  any  Commissioner 
of  the  United  States  Circuit  Court  or  before  any 
secretary  of  legation  or  consular  officer  author- 
ized to  administer  oaths  or  perform  notarial 
acts,  under  Section  1750  of  the  Eevised  Statutes, 
the  certificate  of  such  acknowledgment,  under 
the  hand  and  official  seal  of  such  notary  or  other 
officer,  shall  be  prima  facie  evidence  of  the  exe- 
cution of  such  assignment,  grant  or  convey- 
ance." No  instrument  will  be  recorded,  unless 
in  the  judgment  of  the  Commissioner  it  amounts 
to  an  assignment,  grant,  mortgage,  lien,  incum- 
brance  or  license,  or  which  does  not  affect  the 


130  ASSIGNMENTS. 

title  of  the  patent  or  invention  to  which  it  re- 
lates. 

An  assignment  or  other  conveyance  should 
identify  the  patent  by  date  and  number  as  well 
as  by  title,  or  if  the  invention  is  not  patented 
but  pending  in  the  Patent  Office  the  name  of  the 
inventor,  the  date  of  the  application,  the  title 
of  the  invention,  and,  if  possible,  the  serial  num- 
ber should  be  stated.  Instruments  are  some- 
times recorded  which  do  not  amount  to  an  assign- 
ment, grant,  mortgage,  lien,  incumbrance  or 
license,  and  while  such  matter  should  not  ap- 
pear on  the  records,  still  if  it  is  there  it  may  be 
well  to  take  notice  of  it. 

Where  assignments  are  made  conditional  on 
the  performance  of  certain  stipulations,  the 
Patent  Office  can  have  no  notice  of  whether  or 
not  the  conditions  are  fulfilled,  and  so  the 
records  will  show  an  absolute  transfer,  unless 
the  transfer  is  canceled  on  the  record  by  the 
consent  of  the  parties  to  the  instrument  or  by 
the  decree  of  a  competent  court.  One  can  assign 
an  invention  and  agree  to  assign  all  future  im- 
provements and  the  instrument  will  not  be  an 
assignment,  so  far  as  the  future  improvements 
are  concerned,  but  the  contract  will  be  valid, 
and  if  the  party  makes  such  improvements  he 
can  be  compelled  by  a  competent  court  to  make 
an  assignment  as  stipulated  in  the  original  con- 
tract. It  is  customary  to  make  assignments  of 


ASSIGNMENTS.  131 

inventions  and  of  the  patent  which  may  issue 
therefor  before  the  patent  has  actually  issued, 
but,  in  such  case,  the  assignment  must  be  re- 
corded in  the  Patent  Office  at  a  date  not  later 
than  that  on  which  the  final  fee  is  paid.  If  the 
patent  is  to  issue  to  the  assignee,  the  assign- 
ment must  authorize  and  request  the  Commis- 
sioner of  Patents  to  so  issue  the  patent.  This 
may  be  important  to  the  parties  interested  for 
this  reason :  that  if  there  is  any  shadow  of 
equities  between  the  parties  and  it  should  be- 
come desirable  to  assign  the  patent,  the  pro- 
posed assignees  may  raise  quibbles  concerning 
the  title  and  hold  that  the  equitable  title  is  in 
one  person  and  the  legal  title  in  the  other, 
whereas  if  the  patent  issues  to  the  assignee  no 
such  questions  can  be  raised.  For  this  reason 
it  is  usually  desirable  to  have  the  legal  and 
equitable  title  merged  in  one  person.  If  a  per- 
son dies  owning  a  patent,  his  executor  or  ad- 
ministrator can  make  a  transfer  thereof.  If  a 
person  makes  a  transfer  of  all  his  property  of 
every  kind  and  description  whatsoever,  it  would 
include  and  carry  with  it  his  patent  rights. 
The  form  of  an  assignment  varies  with  almost 
every  case.  There  are  many  nice  questions 
which  come  up  concerning  transfers  and  the  safe 
way  for  the  parties  to  a  transfer  is  to  have  some 
competent  patent  lawyer  prepare  the  necessary 
papers. 


132  GRANTS,  MORTGAGES,  LICENSES. 

A  Grant.— A  grantee  acquires  by  the  grant 
the  exclusive  right  under  the  patent  to  make, 
use  and  vend  and  to  grant  to  others  the  right  to 
make,  use  and  vend  the  thing  patented  within 
and  throughout  a  specified  part  of  the  United 
States,  excluding  the  patentee  therefrom.  The 
essential  difference  between  a  grant  and  an 
assignment  is  that  the  assignment  conveys  the 
whole  interest  or  an  undivided  part  thereof  for 
the  whole  territory  of  the  United  States,  while 
a  grant  conveys  an  exclusive  sectional  interest, 
that  is,  an  exclusive  interest  for  something  less 
than  that  for  the  whole  country.  The  law  re- 
lating to  assignments  relates  also  to  grants,  and 
what  has  been  said  in  this  regard  in  relation  to 
assignments  is  true  as  regards  grants. 

A  Mortgage. — A  mortgage  of  a  patent  is 
substantially  like  a  mortgage  of  any  other  piece 
of  property.  It  can,  in  the  nature  of  things, 
convey  no  more  than  an  assignment  and  the 
title  is  a  defeasible  one,  that  is  to  say,  if  the 
conditions,  as  the  payment  of  money  at  a  given 
time,  are  complied  with,  then  the  transfer  be- 
comes void. 

The  mortgage  to  be  good  as  against  third  par- 
ties must  be  recorded  in  the  Patent  Office  within 
three  months  from  the  date  of  its  execution. 

A  License. — A  license  carries  a  less  interest 
and  a  different  one  from  any  of  the  foregoing 
conveyances.  A  license  may  be  oral,  if  it  can 


LICENSES.  133 

be  strictly  proved,  but  is  usually  written  or 
printed  and  in  such  case  must  be  duly  signed. 
A  license  may  convey  a  right  to  make  or  use  or 
vend  or  it  may  convey  a  right  to  do  all  three 
within  a  certain  territory  ;  it  may  convey  any 
interest  other  than  an  assignment  or  a  grant. 
A  license  may  be  revocable  or  irrevocable.  It 
may  be  exclusive.  It  may  cover  a  small  part 
of  the  United  States  or  the  whole  territory 
thereof.  It  may  be  for  six  months  or  for  the 
whole  term  of  the  patent  and  it  may  convey  all 
the  above  rights  and  still  be  a  license  merely, 
for  it  may  leave  the  title  in  another  who  has  a 
right  to  sue,  or  have  the  patent  reissued  or  have 
the  right  to  disclaim  under  it.  Sometimes  a 
license  is  broad  enough  to  give  the  exclusive 
right  to  make,  sell  and  convey  the  patented 
thing  throughout  the  whole  territory  of  the 
United  States  for  the  full  term  of  the  patent, 
except  that  in  case  of  certain  contingencies,  the 
license  shall  cease  and  all  rights  revert  to  the 
legal  owner.  The  patent  can  be  subdivided  to 
such  an  extent  that  almost  any  conceivable  use 
or  right  under  a  patent  can  be  conveyed  by  it. 
What  distinguishes  it  from  an  assignment  and 
grant  is  that  the  whole  interest  has  not  been 
conveyed,  but  that  a  certain  interest  reversion- 
ary, or  otherwise,  remains  in  the  owner.  Some- 
times a  license  is  merely  implied,  as  in  the  case 
already  referred  to,  where  an  employee  makes 


134  WAREANTY. 

an  invention  on  the  time  or  with,  the  tools  or 
materials  or  at  the  expense  of  his  employer.  In 
such  a  case  the  employer  has  an  implied  license, 
which  the  court  will  enforce,  to  use  the  patented 
thing.  If  a  license  is  to  be  forfeited  on  any 
specified  conditions,  the  conditions  when  they 
arise  will  work  a  forfeiture,  but  if  the  license  is 
to  be  forfeited  by  the  breach  of  conditions  or  by 
certain  acts  of  the  licensee,  the  fact  must  be 
clearly  set  forth  in  the  license  itself,  or  else  a 
decree  of  a  court  is  necessary  to  declare  a  for- 
feiture. A  license,  under  a  patent,  is  a  nice 
form  of  contract  and  must  be  prepared  with 
great  care  by  some  person  skilled  in  such  mat- 
ters. 

Warranty.— As  to  warranty,  the  rule  is  prac- 
tically the  same  as  it  is  in  regard  to  the  transfer 
of  other  property.  If  the  assignor  expressly 
warrants  his  title,  he  is,  of  course,  liable  under 
the  covenant  for  a  breach  of  warranty.  If  he 
conveys  all  right  in  the  patented  invention  it 
has  been  held  that  this  amounts  to  a  warranty 
of  title,  but  if  he  conveys  only  such  rights  as  he 
has,  he  does  not  become  liable,  even  though  it 
should  prove  he  had  no  rights,  for  this  does  not 
amount  to  a  warranty  of  the  title.  If  the  as- 
signor undertakes  to  assign  a  certain  specified 
interest,  then  he  is  held  to  warrant  that  he  has 
such  an  interest  to  assign. 

Undivided  Interest  in  Patents.— It  is  a 


UNDIVIDED  INTEREST.  135 

common  saying  that  parties  owning  undivided 
interests  in  a  patent  are  like  tenants  in  common. 
Either  can  sell  his  interest  without  the  consent 
of  the  other.  Either  can  grant  a  license,  though, 
of  course,  he  cannot  grant  an  exclusive  license 
as  this  would  interfere  with  the  rights  of  the 
other.  But,  generally  speaking,  each  can  do 
with  his  interest  what  he  sees  fit.  It  has  even 
been  held  that  one  cannot  be  called  to  an  ac- 
counting by  the  other,  because,  as  one  judge 
has  said :  "  None  of  the  parties  interested  has 
any  right  to  control  the  action  of  the  other  par- 
ties or  to  exercise  any  supervision  over  them. 
It  is  difficult  to  see  how  an  equitable  right  of 
contribution  can  exist  among  any  of  them  un- 
less it  includes  all  the  parties  and  extends 
through  the  whole  term  of  the  patent  right. 
And  if  there  be  a  claim  for  contribution  of 
profits,  there  should  also  be  a  correlative  claim 
for  losses,  and  an  obligation  on  each  party  to 
use  due  diligence  in  making  his  interest  profit- 
able. It  is  not,  and  cannot  be  contended  that 
these  parties  are  copartners,  but  the  idea  of 
mutual  contribution  for  profits  and  losses  would 
require  even  more  than  copartnership. " 


136 


CHAPTER  X. 

FOREIGN  PATENTS. 

Many  United  States  inventors  procure  foreign 
patents  on  their  inventions  and  frequently  do 
so  under  a  misapprehension  of  the  value  of  the 
foreign  patents  and  of  the  conditions,  some- 
times onerous,  which  must  be  complied  with  to 
keep  such  patents  in  force.  Generally  speak- 
ing, it  is  not  advisable  for  an  inventor  in  the 
United  States  to  procure  foreign  patents  unless 
it  be,  perhaps,  in  Canada,  because  here  a  manu- 
facturer may  enter  into  competition  with  parties 
holding  the  patent  in  the  United  States. 
Whether  or  not  the  inventor  shall  obtain  a  for- 
eign patent  or  patents  depends  largely  on  the 
nature  of  the  invention ;  largely,  too,  on  his 
means  of  exploiting  it,  and  also  very  largely  on 
whether  or  not  he  has  or  can  make  connections 
with  people  in  the  foreign  countries  who  may 
make  use  of  the  invention.  A  United  States 
patent  is  almost  unique  in  this,  that  it  is  granted 
unconditionally  for  the  term  of  seventeen  years 
(except  in  the  case  of  design  patents)  and  the 
patentee  or  his  assignee  is  required  to  pay  no 


FOREIGN  PATENTS.  137 

taxes  or  do  no  work  with  the  invention  unless 
he  feels  so  inclined  and  in  such  cases  his  rights 
are  not  jeopardized. 

In  almost  all  foreign  countries  the  laws  are 
different  from  those  of  the  United  States. 
Usually  there  is  a  cumulative  tax,  being  nominal 
at  first,  and  gradually  increasing  during  the 
life  of  the  patent,  while  in  others  there  is  a  fixed 
yearly  tax.  Most  foreign  countries  require  also 
that  the  invention  shall  be  worked  in  the  country 
within  a  specified  time,  and  if  the  taxes  are  not 
paid  or  the  invention  worked  as  required  then 
the  patent  is  forfeited.  If  a  person  has  patented 
his  invention  in  half  a  dozen  countries,  where 
such  conditions  prevail,  it  will  be  seen  at  once 
that  it  may  be  a  burden  for  him  to  meet  the  re- 
quirements. He  should,  therefore,  before  mak- 
ing application  for  patents  know  whether  or  not 
the  invention  is  likely  to  be  in  demand  in  the 
countries  in  which  patents  are  to  be  obtained, 
and  he  should  also  find  out  whether  he  will  be 
able  to  properly  place  the  patents  and  bring  the 
invention  to  the  attention  of  the  right  parties. 

Usually  the  inventor  or  patentee  has  more 
than  he  can  properly  attend  to  in  exploiting  his 
invention  in  the  United  States.  The  above  are 
general  rules  and  not  always  true.  The  writers 
have  in  mind  one  man  who  did  not  make  a  great 
success  of  his  invention  in  America,  but  who  in 
the  last  two  or  three  years  has  made  something 


138  FOKEIGN  PATENTS. 

like  $400,000  out  of  Ms  patent  rights  in  Great 
Britain  and  a  few  African  countries.  Many  in- 
stances are  known  where  foreign  patents  have 
proved  very  valuable,  but  the  parties  should 
have  a  fairly  clear  and  definite  idea  of  how  they 
will  work  the  patents  and  how  dispose  of  them. 

Of  course,  it  is  known  that  in  Great  Britain, 
Germany,  France,  Belgium,  and,  perhaps  in 
Austria  and  Hungary,  certain  manufactures  are 
very  largely  carried  on,  and  if  an  invention  has 
had  its  value  proved  in  America,  and  if  the 
owners  are  prepared  to  bring  it  properly  to  the 
attention  of  the  parties  in  the  countries  referred 
to,  it  pays  him  to  obtain  patents  in  such  coun- 
tries and  he  may  realize  much  money  from  them. 

Much  depends  on  the  character  of  the  inven- 
tion. An  invention  that  would  be  very  profit- 
able in  France,  or  Belgium,  or  Great  Britain 
might  be  of  little  or  no  value  in  South  America 
or  Australia.  While,  on  the  other  hand,  there 
are  certain  mining  appliances,  some  kinds  of 
agricultural  instruments,  inventions  pertaining 
to  the  handling  of  live  stock  or  natural  prod- 
ucts, which  may  be  of  more  value  in  South 
America  or  Australia  than  in  the  thickly  pop- 
ulated countries  of  Europe.  Certain  woodwork- 
ing machinery  may  be  profitable  in  Canada, 
Norway,  Sweden  and  Russia,  while  it  would 
be  absurd  to  patent  the  invention  in  countries 
that  are  not  great  manufacturing  centres  and 


FOBEIGN  PATENTS.  139 

where  wood  is  scarce.  An  invention  may  per- 
tain to  the  handling  of  fruit  in  some  way  and 
be  valuable  for  Spain  and  Italy  and  France, 
while  it  would  be  without  value  in  northern 
Europe  and  so  on  through  the  whole  list.  One 
must  be  governed  by  the  nature  of  the  country 
and  whether  or  not  his  invention  is  adapted  to 
meet  the  requirements  of  such  a  country.  No 
general  statement  as  to  the  cost,  taxes,  etc.,  of 
foreign  patents  can  be  given,  because  these  rules 
vary  with  almost  every  country,  but  they  are 
at  the  command  of  any  well-informed  patent 
lawyer. 

If  the  new  invention  relates  to  a  line  which 
has  become  established  and  of  proved  value  in 
the  United  States,  then  one  can  almost  certainly 
interest  foreigners  in  the  invention  for  other 
countries,  but  if  nothing  has  been  done  here  and 
the  invention  is  still  in  somewhat  of  an  experi- 
mental stage  and  the  owner  has  no  special  con- 
nections abroad,  he  had  better  confine  his  atten- 
tion to  the  United  States,  where  there  is  a  wide 
field  and  a  chance  to  reap  a  good  harvest  if  the 
invention  should  prove  of  value. 


140 


BOOK  m. 


CHAPTER  I. 

WHAT  TO  INVENT  AND  HOW  TO  INVENT. 

Under  this  title  we  do  not  propose  to  be  so 
specific  as  to  tell  a  man  just  how  to  train  him- 
self so  as  to  bring  forth  a  good  invention  or  to 
specifically  point  out  the  things  which  he  should 
invent  in  order  to  make  money  out  of  his  in- 
ventions, but  it  is  thought  an  inventor  can  be 
given  such  advice  as  will  enable  him  to  invent 
intelligently  and  prevent  him  from  wasting  his 
energies.  There  is  no  better  way  open  to  a  poor 
man  to  acquire  wealth,  and  at  the  same  time 
confer  a  lasting  benefit  upon  humanity,  than  to 
bring  forth  and  perfect  a  good  invention. 

Most  inventors  invent  because  they  cannot 
help  it.  Their  minds  are  so  constituted  that 
new  ideas  are  constantly  presenting  themselves, 
and  they  always  see  chances  for  improvement 
in  some  line  or  other.  There  was  a  time  when 
the  typical  inventor  had  a  wild  eye,  long  hair 
and  a  haggard  look,  but  that  day  has  passed, 


STATE  OF  THE  ART.  141 

and  the  successful  inventor  of  to-day  is  a  keen 
business  man  in  a  way,  although  not  usually 
capable  of  looking  after  the  details  of  a  busi- 
ness, but  sometimes  he  is.  Some  of  the  wealthi- 
est men  in  America  are  men  who  have  begun 
life  poor  and  who  have  brought  out  some  im- 
portant inventions  in  certain  lines  of  manufac- 
ture, have  perfected  the  inventions  and  have 
placed  them  on  the  market.  After  doing  this, 
they  have  kept  control  of  that  particular  line 
of  manufacture — that  is  to  say,  they  have  not 
stopped  after  inventing  a  good  thing  and  said 
"  no  thing  more  can  be  done,"  but  have  gone  on 
improving  and  patenting  and  even  purchasing 
patents  of  others  so  as  to  acquire  and  absorb 
the  best  means  to  be  had  in  their  particular  line. 

Once  an  invention  has  proved  to  be  valuable, 
then  the  cost  of  a  few  patents,  more  or  less,  is 
immaterial,  and  it  is  best  to  keep  that  line  of 
manufacture  covered  by  patents  to  as  great  an 
extent  as  possible.  A  man  may  have  a  broad 
patent  on  a  machine,  and  afterward  many  peo- 
ple may  patent  improvements  on  that  machine. 
These  improvements  may  be  infringements,  and 
the  broad  patent  would  prevent  their  use 
without  the  consent  of  the  first  patentee  during 
the  life  of  his  patent.  But,  on  the  other  hand, 
the  first  patentee  cannot  use  the  infringements 
without  the  consent  of  the  later  patentee. 

There  was  a  time  when  it  was  difficult  to 


142  STATE  OF  THE  AET. 

classify  inventions  and  find  out  just  what  had 
been  done,  but  now  while  the  patents  issued 
number  over  600,000,  still  it  is  an  easy  matter  to 
find  the  state  of  the  art  in  any  particular  line, 
as  all  this  vast  volume  of  patents  is  classified 
and  subclassified  to  such  an  extent  that  any 
subject  within  the  range  of  patents  can  be 
readily  searched.  There  is  no  occasion,  then, 
for  a  man  to  go  about  his  inventions  in  a  hap- 
hazard way,  and,  perhaps,  waste  years  of  valu- 
able time  as  well  as  much  money. 

Before  one  has  gone  far  with  an  invention,  it 
is,  as  a  rule,  advisable  to  examine  the  state  of 
the  art  to  find  out  what  others  have  done  in  this 
particular  line.  There  is  hardly  a  public  library 
of  any  size  in  America  that  does  not  contain 
partial  drawings  and  claims  of  existing  patents, 
at  least  those  issued  since  1872,  and  many  such 
libraries  contain  the  full  specifications  and 
claims  of  all  patents.  One  who  has  the  time 
can,  therefore,  himself  discover  the  state  of  the 
art  by  going  over  the  matter  in  the  library  and 
comparing  his  invention  or  his  idea  as  it  exists 
in  his  mind  or  on  paper  with  what  has  been 
done  before. 

If  he  finds  the  field  is  completely  covered  he 
can  abandon  it,  but  more  often  he  will  find 
that  while  there  may  be  inventions  substan- 
tially like  his,  yet  he  will  get  ideas  which  will 
enable  him,  if  he  is  a  bright  inventor,  to  carry 


STATE  OF  THE  ART.  143 

the  art  forward  further  than  he  originally  in- 
tended. Comparatively  few  inventors  have  the 
time  to  do  this,  and  if  so,  let  such  a  one  put 
his  invention  in  as  good  shape  as  he  can  and 
send  it  with  a  description  to  some  patent  law- 
yer whom  he  knows,  or  who  is  recommended 
to  him,  together  with  a  small  fee,  usually  about 
five  dollars,  and  the  attorney  will  have  the  art 
searched  and  will  send  him  copies  of  patents, 
showing  devices  as  near  as  may  be  to  his,  and 
will  further  advise  him  as  to  the  probabilities 
of  getting  a  patent.  It  is  well  to  make  this 
search,  either  by  attorney  or  personally,  before 
going  to  great  length  with  the  invention,  be- 
cause so  many  inventions  have  been  patented 
that  the  inventor  may  find  practically  his  own 
ideas  already  covered,  though  they  may  be 
original  with  him,  so  far  as  he  is  concerned. 
Often,  and,  perhaps,  usually  the  inventor 
will  go  ahead,  without  any  attempt  to  see  what 
has  already  been  accomplished  in  his  line,  and, 
of  course,  after  he  has  gone  to  the  expense  of 
spending  his  time  and  money,  and  to  the  fur- 
ther expense  of  making  a  patent  application,  it 
is  a  sore  disappointment  to  find  that  his  claims 
are  substantially  met.  If  the  line  of  invention 
seems  important  and  the  inventor  wishes  to  be 
thoroughly  informed  on  it,  he  can  often  secure 
the  whole  subclass  of  patents  to  which  it  re- 
lates for  a  comparatively  small  expenditure. 


H4  WHAT  TO  INVENT. 

Recently  the  cost  of  patent  copies  has  been 
reduced  so  that  one  can  order  a  single  copy  for 
five  cents ;  a  subclass,  and  get  the  copies  for 
three  cents  apiece ;  a  class,  for  two  cents 
apiece,  and  all  the  patents  issued  for  one  cent 
each.  It  will  be  seen  that  one  can  easily  know 
what  he  has  to  contend  with  before  he  goes 
very  far  with  his  invention.  On  the  other 
hand,  many  inventors  have  already  done  so 
much  in  certain  lines  that  they  are  thoroughly 
familiar  with  the  art  and  know  practically  just 
what  has  been  attempted  before  their  inven- 
tion. In  such  a  case,  the  proper  thing  to  do  is 
to  at  once  file  the  patent  application.  It  may 
be  that  the  invention  is  of  such  a  nature  that 
one  may  feel  reasonably  sure  of  its  novelty, 
and  had  rather  apply  at  once  than  wait  for  an 
examination.  It  may  appear  also  that  there  is 
danger  of  an  interference  with  some  other  party 
— that  is,  that  another  may  file  an  application 
for  the  same  thing,  and,  if  there  is  reason  for 
haste,  then  it  is  well  to  file  the  application. 

What  to  Invent. — What  has  been  said  al- 
ready in  this  chapter  relates  particularly  to 
how  a  man  can  acquaint  himself  fully  with  the 
art.  That  which  is  most  important,  after  all, 
is,  perhaps,  to  know  what  to  invent.  Some  of 
the  most  ingenious  things  have  been  of  no  prac- 
tical value,  and  there  have  been  some  inven- 
tions recognized  as  great  inventions  which  have 


WHAT  TO  INVENT.  115 

been  of  no  commercial  worth.  The  average 
inventor  is  not  seeking  fame  as  much  as  he  is 
seeking  money,  and,  therefore,  he  wishes  to 
direct  his  ingenuity  in  the  best  commercial 
lines.  Let  him,  therefore,  when  an  invention 
suggests  itself  to  him  ask  himself  first  of  all, 
what  the  demand  for  it  will  be  if  it  is  success- 
ful, as  he  hopes. 

It  is  not  necessary  to  confine  ingenuity  to 
great  lines,  because  some  of  the  greatest  com- 
mercial affairs  of  the  country  are  founded  on 
little  things,  like  glove  fasteners,  matches, 
toothpicks  and  woodenware,  hairpins,  hooks 
and  eyes  and  a  thousand  other  things,  but  he 
should  know  that  whatever  his  invention  is 
there  will  be  a  demand  for  it  if  it  is  up  to  his 
expectations  so  far  as  structure  is  concerned. 
If  the  invention  relates  to  some  staple  article  of 
manufacture  or  consumption,  and  he  can  devise 
machinery  or  means  to  cheapen  the  said  arti- 
cle, he  is  practically  sure  of  a  commercial  suc- 
cess, because  if  he  can  show  any  manufacturer 
that  he  can  save  him  money,  he  will  find  a  very 
ready  listener  and  find  a  class  of  people  ready 
to  meet  him  if  his  invention  is  properly  pro- 
tected. He  is  certain  of  being  able  to  put  a 
part  of  the  saving  into  his  own  pocket  if  his 
invention  is  properly  managed.  If,  on  the 
other  hand,  he  can  make  the  said  article  of 
manufacture  so  that  it  will  cost  no  more,  but 


146  WHAT  TO  INVENT. 

will  be  really  better,  then,  too,  lie  has  some- 
thing which  will  pay  him  well.  If  not  at  once, 
it  will  in  the  long  run,  if  the  invention  is  han- 
dled as  it  should  be.  One  of  the  most  suc- 
cessful inventions,  coming  under  our  personal 
knowledge,  is  of  this  latter  class.  The  inventor 
had  a  means  of  making  a  well-known  article  of 
manufacture,  so  that  it  was  a  little  more  desira- 
ble than  it  would  otherwise  be,  and  it  cost  no 
more  than  similar  articles  made  without  the 
improvement.  The  inventor  hesitated  about 
making  the  application  for  a  patent,  and  even 
allowed  his  first  application  to  lapse,  but  after- 
ward procured  his  patent  and  began  making 
his  goods.  They  cost  no  more  than  did  goods 
of  his  competitors,  and  he  soon  found  that 
wherever  his  goods  were  offered  in  competition 
with  those  of  others  he  received  the  order,  and, 
as  a  result,  his  trade  increased  by  leaps  and 
bounds,  and  he  realized  handsome  returns  from 
his  little  invention. 

It  is  a  notorious  fact  that  first  inventors 
usually  employ  complicated  means  to  attain 
the  desired  result,  and  that  following  improve- 
ments usually  simplify  the  means.  If  one  can 
see  a  way  of  simplifying  a  well-known  process 
of  manufacture  or  a  well-known  machine,  he 
will  usually  find,  even  though  he  cannot  use 
the  improvement  independently  of  the  original 
inventor,  its  value  will  be  recognized,  and  he 


WHAT  TO  INVENT.  147 

can  get  a  good  return  for  what  lie  puts  into  the 
invention  in  the  way  of  time,  ingenuity  and 
money.  Inventions  to  be  profitable  need  not 
be  of  either  class  above  referred  to,  but  the  in- 
ventor should  satisfy  himself  that  there  is  a 
demand  for  the  invention.  Perhaps  the  inven- 
tion is  a  toy.  Many  such  have  proved  wonder- 
fully remunerative.  But  he  should  take  some 
means  to  find  out  whether  the  toy  will  be  a 
selling  one  before  he  goes  too  far  with  it.  In 
inventions  of  this  kind  it  is  not  always  possible 
to  do  so,  and  it  is  something  of  a  speculation, 
and  a  person  cannot  always  tell  just  how  a 
thing  will  take  until  it  is  tried  on  the  market. 
Almost  every  one  can  call  to  mind  certain  toys 
and  games  which  have  been  patented,  and  from 
which  the  promoters  have  made  fortunes.  The 
invention  may  be  a  design,  and  be  very  profita- 
ble, but  usually  this  line  of  inventions  is  con- 
fined to  a  class  of  people  having  more  or  less 
to  do  with  the  manufacture  of  artistic  articles, 
though  this  is  not  always  the  case. 

Sometimes  one  will  conceive  a  design  for  an 
article  of  manufacture  other  than  an  ornament, 
or  even  an  ornament  which  will  commend  itself 
at  once  to  those  who  are  engaged  in  the  line  to 
which  the  design  appertains.  Frequently  the 
shape  given  to  the  invention  will  be  of  such 
novelty  as  to  give  it  such  a  new  function  that 
the  article  can  be  covered  by  an  ordinary  sev- 


148  HOW  TO  INVENT. 

enteen-year  patent.  But,  generally  speaking, 
the  inventor  wastes  his  ingenuity  if  he  allows 
himself  to  work  on  articles  for  which  there  will 
be  no  profitable  sale,  or  which  will  not  in  some 
way  affect  some  line  of  trade  or  manufacture 
sufficiently  extensive  to  give  him  a  good  reward. 
There  is  no  need  for  him  to  make  such  a  waste 
of  his  energy,  because  there  is  plenty  of  room 
for  the  best  inventive  skill  along  remunerative 
lines. 

How  to  Invento — The  inventor,  whether  of 
patentable  inventions  or  of  those  which  do  not 
come  within  the  purview  of  the  patent  law,  is 
one  who  is  of  open  mind  and  is  looking  con- 
stantly for  something  new  and  who  is  never 
satisfied  with  what  has  come  to  him  at  second 
hand.  Almost  any  one  can  invent,  though  all 
cannot  be  great  inventors,  and  a  natural  in- 
ventor will,  ordinarily,  do  more  and  better 
inventive  work  than  one  who  is  not ;  just  as  a 
natural  poet  will  write  more  and  better  poems 
than  one  who  has  to  labor  to  bring  forth  a  little 
rhyme.  But  any  one  may  see  room  for  im- 
provement. 

Do  not  take  things  for  granted.  The  steam 
engine  of  a  generation  ago  looked  a  veritable 
wonder  to  the  people  of  that  time,  but  the  same 
engine  would  look  crude  indeed  as  compared 
with  one  of  recent  build  or  with  an  up-to-date 
electric  motor.  Find  out  the  whys  and  where- 


HOW  TO  INVENT.  149 

fores  of  things,  and  see  if  they  cannot  be  im- 
proved. If  you  see  a  piece  of  work  being  done 
in  a  way  which  seems  crude,  ask  yourself  how 
it  could  be  done  in  a  better  way.  If  a  thing 
does  not  work  to  your  satisfaction,  ask  how  it 
may  be  improved  so  as  to  approximately  meet 
your  ideas.  If  a  thing  is  too  expensive,  study 
to  see  how  it  may  be  cheapened,  and  in  these 
ways  you  may  discover  something  of  value  to 
yourself  and  the  rest  of  the  world.  Some  great 
inventions  have  been  discovered  accidentally, 
but  usually  the  accident  has  come  during  the 
course  of  experiments  along  the  line  to 
which  the  invention  relates.  If  you  do  not 
accept  conditions  of  things  as  being  ideal,  but 
look  earnestly  for  improvement,  it  will  surprise 
you  to  see  how  many  crudities  will  come  to 
your  attention  and  how  many  improvements 
will  suggest  themselves. 

This  being  done,  then  discriminate,  and  see 
what  suggested  improvements  are  worth  fol- 
lowing up  and  what  are  worth  patenting  and 
exploiting.  It  is  not  necessary  that  the  inven- 
tion be  in  the  line  of  business  in  which  the 
inventor  is  engaged.  It  happens  as  often  as 
otherwise  that  a  person  will  see  a  new  machine 
or  a  new  process  for  the  first  time  in  his  life, 
and  will  ask  why  some  things  are  not  done  in 
a  certain  way  or  will  note  at  once  a  means  to 
simplify  a  machine  or  process,  or,  perhaps, 


150  HOW  TO  INVENT. 

change  it  for  the  better.  All  of  which  goes  to 
show  that  a  man  who  has  his  eyes  open  may 
see  improvements  almost  anywhere. 


151 


CHAPTER  II. 

INTRODUCTION  AND   SALE  OF  PATENTED 
INVENTIONS. 

The  average  inventor  is  completely  taken  tip 
with  securing  his  patent,  and  after  he  has  re- 
ceived it  he  finds  himself  at  a  loss  to  know 
what  to  do  with  his  invention.  Frequently  he 
is  a  man  who  has  not  had  much  business  ex- 
perience and  he  does  not  know  how  or  where  to 
begin,  does  not  know  how  to  sell  the  invention, 
to  interest  capital,  or  conduct  the  business  gen- 
erally. The  best  means  of  handling  the  patent 
depends  on  the  intention  of  the  inventor  as  to 
its  exploitation.  He  should  know  first  that  he 
has  something  worth  introducing  or  else  he  will 
be  sorry  if  he  tries  to  do  anything  with  the  in- 
vention. If  he  has  something  that  is  worthless 
and  succeeds  in  palming  it  off  on  some  one,  the 
result  will  be  unsatisfactory  in  the  end.  Let 
him,  then,  satisfy  himself  that  he  has  a  really 
good  thing  and  that  it  is  of  value.  His  next 
step  will  depend  on  one  of  several  things : 
First,  Is  it  his  intention  to  stay  in  the  business 
to  which  the  patent  relates  ?  Second,  Is  he  a 


152  INTRODUCTION  AND  SALE. 

prolific  inventor?  Third,  Is  Ms  business  al- 
ready established  and  does  the  patent  simply 
enhance  the  value  of  his  business?  Fourth, 
Does  he  wish  to  establish  a  business  founded 
on  his  patent?  Fifth,  Does  he  wish  to  sell 
patent  rights,  that  is,  territorial  rights  ?  Sixth, 
Does  he  wish  to  sell  out  his  invention  for  cash  1 
Seventh,  Is  he  satisfied  to  have  the  invention 
worked  on  a  royalty  ? 

If  the  inventor  intends  to  manufacture  and 
control  his  patent  himself  and  has  sufficient 
capital  to  work  it,  then  the  advice  here  given 
would  be  of  no  especial  value  as  it  would  sim- 
ply be  a  commercial  affair  and  he  would  use 
ordinary  business  methods  to  bring  his  inven- 
tion before  the  public.  If  it  is  a  machine  he 
will  manufacture  the  machine,  and  use  every 
legitimate  means  to  advertise  it  and  bring  it  to 
the  attention  of  the  public  in  the  line  to  which 
the  invention  relates.  He  will,  if  possible,  get 
the  machine  at  work  where  it  can  be  compared 
with  others  and  if  it  is  superior  it  will  eventu- 
ally make  its  way.  If  the  inventor  has  not  the 
capital  himself,  and  this  is  usually  his  predica- 
ment, he  must  in  some  way  get  some  one  to  put 
in  money  with  him  to  promote  his  invention. 
In  this  case  let  him  remember  that  the  money 
is  as  essential  to  develop  and  work  the  inven- 
tion as  the  invention  is  to  make  capital  profit- 
able, and  he  must  therefore  be  willing  to  give 


INTRODUCTION  AND  SALE.  153 

some  one  a  reasonable  chance  to  share  in  the 
success  of  the  venture  and  should  not  expect 
too  much  for  his  invention,  particularly  as  the 
invention  is  usually  somewhat  in  the  nature  of 
an  experiment  which  may  not  prove  successful. 

Usually  the  money  necessary  to  properly 
push  the  invention  should  command  as  great  an 
interest  as  the  invention  itself,  but  the  inventor 
may  be  at  a  loss  to  know  how  to  interest  capital 
even  on  this  basis.  The  first  thing  necessary  is 
to  properly  exhibit  the  invention.  If  the  in- 
ventor takes  a  somewhat  crude  drawing  or  even 
a  good  drawing  and  attempts  to  explain  his  in- 
vention, he  will  find  the  result  unsatisfactory. 
Nine  out  of  ten  will  say :  "Oh,  yes,  we  under- 
stand it  all  right,"  and  perhaps  they  do,  but 
even  if  they  do,  it  will  be  found  that  the  same 
men  will  be  very  much  more  favorably  im- 
pressed if  the  inventor  exhibits  to  them  a  work- 
ing model  or,  better,  a  full-sized  device  showing 
the  advantages  of  the  invention. 

Men  who  are  working  over  drawings  every 
day  for  years  are  themselves  constantly  sur- 
prised to  see  how  much  more  favorably  they 
are  impressed  with  the  real  thing  than  by  any 
drawing  that  might  be  submitted.  It  is  often 
pretty  difficult  for  an  inventor  to  get  money  to 
make  a  model  to  properly  show  his  invention, 
but  let  him  persevere.  If  he  cannot  make  a 
model  himself,  let  him  find  somebody,  some 


154  INTRODUCTION  AND  SALE. 

friend  or  other,  who  will  advance  the  money 
and  take  his  pay  out  of  the  profits  or  accept  a 
small  interest.  The  invention  must  be  presented 
properly  or  he  never  can  secure  satisfactory  re- 
sults. If  he  is  satisfied  that  the  invention  is 
valuable,  he  may  make  great  sacrifices  to  put 
it  in  shape.  We  have  in  mind  one  inventor  who 
made  an  immense  fortune  out  of  one  of  the  best- 
known  steam  appliances  in  the  country,  and 
have  it  directly  from  his  son  that  he  was  forced 
to  sell  the  bed  from  under  him  to  get  the  money 
to  make  his  model  and  show  his  invention.  The 
inventor  had  a  terrible  experience,  but  he  was 
successful,  and  there  is  nothing  like  success. 
We  believe  with  Emerson  that  the  law  of  com- 
pensation is  sure  to  come  in  somewhere,  and  the 
inventor  must  give  some  sort  of  an  equivalent 
for  what  he  receives.  If  he  is  compelled  to 
economize  and  struggle  and  make  many  sacri- 
fices it  amounts  to  nothing  if  his  efforts  are 
crowned  with  success.  All  great  successes 
usually  come  as  a  reward  to  great  efforts.  This 
is  recognized  as  a  rule  and  is  especially  true  in 
regard  to  inventions.  Do  not  therefore  be  dis- 
couraged. Do  not  lie  by  and  expect  some  one 
to  hunt  up  the  invention  and  buy  it  or  push  it, 
but  persistently  bring  it  to  the  attention  of  some 
one  who  can  help  you.  The  inventor  need  not 
feel  any  modesty  about  this,  for  if  the  invention 
is  good  he  is  doing  a  favor  to  the  party  whom 


INTRODUCTION  AND  SALE.  155 

he  interests.  When  he  has  succeeded  in  get- 
ting his  business  started,  ha  must  then  be  eter- 
nally vigilant  and  see  that  the  invention  is  kept 
up-to-date,  that  is,  he  must,  if  possible,  antici- 
pate improvements  and  cover  every  novel  feature 
by  a  patent,  as  when  the  business  is  once  started 
its  profits  depend  upon  the  monopoly  which  the 
patent  gives  and  the  cost  of  a  few  patents,  more 
or  less,  under  such  circumstances  is  of  no  con- 
sequence. When  a  business  founded  on  a  good 
patent  cannot  be  started  by  a  few  people  in  their 
individual  capacities,  a  favorite  means  is  to  pro- 
mote the  invention  through  a  joint-stock  com- 
pany or  corporation.  This  subject  will  be  treated 
in  the  following  chapter. 

Is  the  Inventor  Prolific?— Our  experience 
is  that  real  prolific  inventors  will  not,  as  a  rule, 
be  tied  down  to  any  one  business  or  line  of  in- 
ventive work.  We  know  many  men  of  this  kind 
who  invent  almost  constantly  and  will  some- 
times make  a  great  deal  of  money  out  of  the 
sale  of  an  invention,  will  then  go  into  business 
and  lose  it  all  and  will  finally  bring  out  some 
other  good  invention  and  make  another  small 
fortune.  We  have  in  mind  many  such  people 
as  this  and  do  not  doubt  that  many  inventors 
who  read  this  will  see  that  the  coat  fits  them. 
Such  people  are  very  foolish  to  attempt  to  man- 
age any  business  or  to  be  too  closely  identified 
with  it.  To  such  a  one  we  say :  keep  on  invent- 


156  INTRODUCTION  AND  SALE. 

ing,  bring  out  your  invention,  put  it  in  good 
shape  to  show,  then  sell  your  patent  rights  and 
keep  on  inventing  and  selling.  If  you  are  like 
many  prolific  inventors,  this  is  the  only  way 
you  will  make  any  money,  and  if  you  are  in- 
terested in  some  of  your  inventions,  that  is,  in 
a  commercial  way,  let  some  one  else  manage 
the  business.  One  man  is  seldom  good  at  every- 
thing. It  is  one  of  the  greatest  gifts  to  be  able 
to  bring  forth  good  inventions,  and  a  man  who 
can  do  this  successfully  and  often  cannot  ex- 
pect to  do  everything  else  equally  well,  and 
should  be  satisfied  to  reap  the  reward  of 
his  ingenuity  by  selling  the  products  of  his 
brain  without  any  attempt  at  commercial 
exploitation. 

Does  the  Patent  Relate  to  Established 
Business  ?— There  is  a  class  of  shrewd  inven- 
tors who  are  successful  manufacturers  and 
whose  ingenuity  comes  with  the  need  of  mak- 
ing a  dollar  in  the  line  of  business  in  which 
they  are  engaged.  These  men  generally  manu- 
facture specialties  covered  more  or  less  by  their 
own  patents,  and  this  is  what  makes  the  business 
profitable.  They  should,  therefore,  see  to  it 
that  they  keep  the  line  of  manufacture  pro- 
tected and  such  a  man  should  not  think  he 
is  the  only  one  who  can  invent,  but  should 
take  up  any  meritorious  invention  in  his 
line  even  though  it  is  invented  by  some  one 


INTRODUCTION  AND  SALE.  157 

else,  because  if  another  invention  is  nearly 
as  good,  it  means  competition  and  reduced 
profits. 

Territorial  Rights.— As  much  depends  on 
the  way  in  which  a  patent  is  handled  as  on  the 
invention  itself,  so  far  as  profits  are  concerned. 
Many  inventors,  after  patenting  a  real  good  in- 
vention, seem  to  lose  interest  in  the  matter  and 
let  it  drop.  There  is  never  a  good  thing  for 
which  there  is  a  demand  that  cannot  be  sold. 
Some  quick  fortunes  have  been  realized  by  sell- 
ing out  the  rights  under  a  patent,  under  terri- 
torial grants.  The  inventor  is  usually  capable 
of  giving  a  good  explanation  of  his  invention 
and  showing  up  its  methods.  Let  him  then, 
after  getting  his  patent,  make  a  model,  or  if  it 
is  practicable,  a  full- sized  device  and  exhibit  it 
in  the  different  States,  counties  and  towns.  Let 
him  engage  a  few  people  whom  he  knows  to  be 
honest  and  active  to  assist  him  in  this  work 
and  he  will  find  that  by  putting  in  hard  and 
earnest  and  persistent  work  in  showing  up  this 
invention  in  different  communities,  he  can  in 
almost  every  county  find  a  customer  who  will 
pay  him  well  for  an  exclusive  county  right  or 
he  may  find  a  customer  who  will  pay  more  for 
a  State  right.  This  can  be  and  is  done  over  and 
over  again  by  enterprising  inventors  and  the  re- 
sult is  almost  always  highly  satisfactory.  Very 
often  an  inventor  will  make  an  arrangement 


158  INTRODUCTION  AND  SALE. 

with  a  manufacturer  who  will  agree  to  supply 
the  invention  in  certain  quantities  at  a  certain 
price.  He  may  retain  an  interest  in  this  manu- 
facture. He  then  sells  the  territorial  rights  as 
widely  as  possible  and  agrees  to  furnish  goods 
at  a  given  price.  He  thus  gets  a  quick  profit 
from  the  sale  of  the  patent  right  and  a  contin- 
uous profit  from  the  manufacture  of  the  goods, 
if  the  sale  proves  to  be  considerable.  The  in- 
ventor should  not  ask  too  much  or  at  least 
should  not  insist  on  getting  too  much  for  his 
territorial  rights,  but,  as  a  rule,  it  is  better  to  ac- 
cept a  reasonable  offer,  even  though  it  seems 
low,  for  the  profit  is  quick  and  the  expenses 
light. 

Selling  a  Patent  Complete.— If  the  inven- 
tion is  a  good  one  and  the  patent  reasonably 
strong,  the  inventor  can  by  intelligent  and  con- 
tinued effort  usually  interest  some  one  engaged 
in  the  line  of  business  to  which  the  patent  re- 
lates. In  this  case  the  invention  should  not  be 
shown  to  the  party  whom  it  is  desired  to  in- 
terest until  it  can  be  put  in  good  condition,  so 
that  no  explanations  or  apologies  are  necessary. 
If  he  can  show  a  good  thing  and  the  invention 
is  capable  of  speaking  for  itself,  as  the  saying 
is,  he  will  find  parties  who  are  interested  in  it. 
If  it  saves  a  man  money,  he  is  quickly  in- 
terested. If  it  bids  fair  to  enlarge  his  trade,  he 
is  also  interested.  The  main  thing  is  to  have  it 


INTRODUCTION  AND  SALE.  159 

properly  presented.  Many  inventions  which 
are  of  little  or  no  value  are  called  to  the  atten- 
tion of  manufacturers  and  capitalists,  thus  mak- 
ing them  lose  faith  in  inventions,  and  sometimes 
such  men,  if  they  really  wish  to  buy  an  inven- 
tion, will  discredit  it ;  will  say  boldly  that  they 
have  found  the  patent  is  invalid ;  will  even 
threaten  to  make  the  invention  or  will  state  that 
it  does  not  interest  them  ;  when,  as  a  matter  of 
fact,  they  are  really  aiming  to  buy  it  cheaply. 
This  is  the  reason  an  inventor  can  sometimes 
act  better  through  a  third  party,  although  this 
depends  somewhat  on  the  character  of  the  peo- 
ple with  whom  he  is  dealing  and  whether  or  not 
he  is  in  a  measure  acquainted  with  them.  If  it 
can  be  brought  to  the  attention  of  proposed 
buyers  and  shown  that  the  invention  will  prob- 
ably come  into  competition  with  them  if  they 
do  not  control  it,  they  are  more  likely  to  buy 
the  invention  and  will  frequently  buy  it  to  pre- 
vent such  competition  even  if  they  do  not  intend 
to  use  the  invention  directly  in  their  business. 
There  is  hardly  a  large  manufacturing  cor- 
poration in  America  which  does  not  own  scores 
of  patents  for  inventions  which  it  does  not  use 
and  some  of  them  own  hundreds  and  even 
thousands  of  such  patents.  If  the  invention  has 
merit  and  can  be  brought  properly  to  the  atten- 
tion of  such  people  it  will  usually  sell,  but  the 
inventor  should  not  expect  to  get  the  last  dollar 


160  INTRODUCTION  AND  SALE. 

there  is  in  the  invention,  and  will  usually  make 
a  mistake  if  lie  does  not  accept  a  reasonable 
offer. 

The  invention  can  often  be  sold  by  judicious 
advertising.  If  a  well- worded  advertisement  is 
placed  in  a  daily  paper  of  a  large  city,  it  will 
usually  attract  attention,  and  some  of  the 
answers  to  the  advertisement  may  lead  to  a  sale. 
Advertisements  in  obscure  papers  or  papers  de- 
voted specially  to  patents  and  particular  lines 
are  not  so  apt  to  be  profitable  as  those  placed 
in  well-known  daily  papers  of  large  circulation. 
It  pays  to  have  a  well- written  description  and 
a  cut  of  the  invention,  which  can  be  sent  to  the 
parties  expressing  an  interest  in  it,  and  the  in- 
ventor should  be  able  to  make  a  conservative 
statement  as  to  the  probable  extent  of  use  of  the 
invention,  its  sale  or  saving  and  the  profits 
likely  to  be  derived  from  it.  In  this,  as  in  every- 
thing else,  a  system  carried  out  intelligently 
and  persistently  is  almost  sure  to  bring  good 
results.  There  are  many  ways  in  which  the 
inventor  can  sell  his  invention.  But  he  must 
try  to  sell,  keep  working  and  follow  up  the 
different  clues  which  present  themselves.  If 
he  does  this  he  is  almost  certain  to  sell  in 
the  end. 

Royalties. — There  are  many  manufacturers, 
small  and  large,  who  are  willing  and  anxious 
to  take  up  a  good  invention  but  who  cannot 


INTRODUCTION  AND  SALE.  161 

spare  the  capital  to  buy  the  patent  outright. 
Such  men  will  pay  a  reasonable  royalty  on 
something  which  appeals  to  them  and  in  the 
end  will  make  a  handsome  thing  out  of  the  in- 
vestment, and  the  result  will  also  be  very  satis- 
factory to  the  inventor.  The  inventor  can 
usually  get  a  good  income  by  an  arrangement 
of  this  sort  and  get  very  much  more  out  of  the 
invention  than  if  he  attempted  to  sell  it  outright. 
Such  an  arrangement  is  usually  made  by  giving 
a  license  to  the  manufacturer,  which  license 
may  be  exclusive  or  otherwise,  according  to  the 
nature  of  the  case,  and  the  licensee  should  be 
willing  to  pay  something  in  cash  as  a  guaranty 
that  the  work  will  be  pushed.  He  should  agree 
to  make  and  sell  at  least  a  certain  number  per 
year.  He  should  agree  to  make  returns  under 
oath  at  stated  intervals  of  the  amount  of  his 
sales.  He  should  also  agree  that  the  records  of 
sale  should  be  open  to  the  licensor.  He  should 
further  agree  that  the  royalties  should  be  paid 
at  stated  intervals  and  it  should  be  also  under- 
stood and  agreed  that  if  the  terms  of  the  license 
are  not  complied  with,  the  license  is  thereby 
forfeited. 

Caution.— It  has  been  told  how  the  aid  of  a 
third  party  may  be  of  service  in  selling  an  in- 
vention or  patent  and  in  a  later  chapter  it  has 
been  stated  how  a  promoter  can  be  successfully 
used  in  some  cases.  But  the  owner  of  the  patent 


162  INTKODUCTION  AND  SALE, 

must  be  on  his  guard  in  such  matters,  for  it  is 
the  custom,  and  has  been  for  many  years,  for 
agencies  and  individuals  to  flood  the  country 
with  advertising  matter  which  is  sent  chiefly  to 
patentees  and  tells  how  the  advertiser  can  sell 
patents.  As  a  rule  the  people  sending  out  this 
matter  are  unreliable  and  seek  only  to  get  what 
money  they  can  from  the  patentee.  It  is  seldom 
indeed  that  most  of  them  effect  a  sale.  It  is 
their  custom  to  require  a  bonus  to  cover  adver- 
tising expenses  and  other  little  bills,  but  this 
bonus  is  usually  for  the  sole  benefit  of  the  per- 
son who  claims  skill  in  selling.  Where  agencies 
advertise  to  sell  patents,  it  is  usually  with  the 
idea  of  getting  the  inventors  to  file  through 
them  their  patent  applications  and  it  is  rarely 
they  effect  a  legitimate  sale.  There  are  com- 
petent parties  who  do  such  work,  but  their  re- 
liability must  be  ascertained  and,  as  a  rule,  they 
do  not  require  any  cash  payments  in  advance. 
In  conclusion,  the  inventor  should  not  sit 
down  and  wait  after  he  receives  his  patent,  but 
should  gird  himself  for  the  struggle  which  has 
just  begun  and  work  hard  and  constantly  until 
he  forces  the  invention  to  the  attention  of  some 
party  who  will  either  work  it  or  buy  it.  This 
can  be  done  either  by  his  own  efforts  or  by  the 
efforts  of  some  party  whom  he  interests.  But, 
as  a  rule,  the  efforts  of  any  third  party  must  be 
supplemented  and  augmented  by  the  never- 


INTRODUCTION  AND  SALE.  163 

ceasing  efforts  of  the  inventor  himself.  If  the 
invention  is  good  and  properly  protected  by 
Letters  Patent,  such  efforts  as  these  will  eventu- 
ally effect  a  sale. 


164 


CHAPTER  III. 

SALE  OR  PROMOTION  BY  JOINT-STOCK   COM- 
PANIES OR  CORPORATIONS. 

In  this  chapter  it  is  not  proposed  to  treat  of 
joint-stock  companies  and  corporation s per  se, 
but  to  define  their  peculiar  characteristics  and 
powers  only  so  far  as  they  pertain  to  the  sub- 
jects of  exploiting  or  selling  inventions.  If  a 
person  has  to  raise  a  comparatively  large 
amount  of  money  it  is  not  usually  easy  to  find 
one  or  two  people  who  are  willing  to  risk  the 
whole  amount  or  a  considerable  part  thereof  in 
an  experimental  venture,  and  it  is  much  easier 
to  find  twenty-five  people,  for  instance,  who 
will  risk  a  thousand  dollars  apiece,  than  it  is 
to  find  one  man  who  will  risk  twenty-five 
thousand  dollars  or  two  who  will  risk  twelve 
thousand  five  hundred  dollars  each.  More- 
over, when  a  person  in  his  individual  capacity 
joins  another  to  promote  an  invention  in  any 
way,  he  will  usually  become  a  partner  in  the 
enterprise  and  so  become  liable  beyond  the 
amount  of  money  which  he  invests.  But  by 
becoming  a  stockholder  in  a  legally  organized 


PKOMOTION  BY  CORPORATION.  165 

corporation,  he  only  runs  the  risk  of  losing  his 
investment  or  a  part  of  it  and  has,  perhaps,  a 
better  opportunity  to  get  a  profit.  Usually, 
too,  the  inventor  or  patent  owner  wishes  to 
make  some  money  out  of  his  patent  quickly, 
as  well  as  to  provide  himself  a  continuous  in- 
come. If  a  private  person  puts  up  money  to 
promote  the  patent  enterprise,  he  may  insist 
that  all  the  money  shall  go  into  the  business, 
whereas  by  organizing  a  corporation  and  selling 
his  invention  to  it,  as  described  presently,  the 
inventor  can  usually  retain  a  percentage  of  the 
money  actually  paid  in  and  in  any  event  can 
retain  a  large  stock  interest  and  his  stock  can 
be  disposed  of  in  greater  or  less  amounts  as  the 
necessities  of  the  case  require. 

Probably  a  corporation  organized  to  handle 
or  exploit  a  patented  thing  affords  the  easiest 
means  by  which  an  inventor  can  market  his  in- 
vention either  to  get  his  money  out  of  it  or  to 
get  it  on  a  business  footing.  This  can  be  done 
in  several  ways.  We  will  suppose  that  the  in- 
ventor has  a  meritorious  invention  worthy  of 
exploitation  and  that  it  requires,  say,  twenty- 
five  thousand  dollars  to  start  a  manufacturing 
company  which  can  properly  handle  the  inven- 
tion. We  will  suppose  that  the  inventor  can 
show  that  with  the  expenditure  of  a  certain 
amount  and  the  proper  managing  of  the  busi- 
ness, the  profits  of  the  concern  will  pay  good 


166  PAYMENT  OF  CAPITAL. 

dividends  on  a  hundred  thousand  dollars  capi- 
tal. In  some  States,  the  corporation  laws  re- 
quire that  the  whole  capital  stock  of  the  cor- 
poration must  be  paid  in  in  cash  or  in  a  good 
cash  equivalent  and  the  laws  are  construed  to 
mean  that  property  turned  in  in  lieu  of  cash 
shall  be  actually  worth  the  valuation  placed 
upon  it.  But  there  are  many  others  having 
liberal  corporation  laws,  such  as  Maine,  West 
Virginia,  New  Jersey,  and  several  Territories 
and  many  other  States  in  which  a  very  small 
amount  can  be  paid  in  in  cash  and  the  balance 
in  property  at  such  a  valuation  as  the  organ- 
izers or  stockholders  fix.  Nearly  all  States  and 
Territories,  however,  require  that  the  stock  at 
its  first  subscription  and  issue  must  be  sold  at 
par.  It  is  not  obvious,  then,  how  one  can  or- 
ganize a  hundred  thousand  dollar  corporation, 
sell  twenty-five  thousand  dollars'  worth  of  stock 
at  less  than  par  and  provide  a  large  stock  inter- 
est for  the  patentee  or  patent  owner  and  still 
keep  within  the  letter  of  the  law.  It  is  done  in 
this  way :  We  will  suppose  that  an  inventor 
has  found  parties  who  are  willing  to  risk  some 
money  in  the  enterprise  and  will  take  sufficient 
stock  at,  say,  seventy  cents  on  the  dollar,  to 
realize  the  twenty-five  thousand  dollars.  He 
then  with  several  other  parties,  more  or  less, 
according  to  the  requirements  of  the  State  in 
which  he  organizes,  incorporates  under  a  cer- 


TBEASUKY  FUND.  167 

tain  name.  The  incorporators  and  stockholders 
at  their  first  meeting  adopt  a  resolution  for  the 
purchase  of  the  patent  or  patents  which  it  is 
proposed  to  turn  into  the  company  and  author- 
ize the  proper  officers  to  issue,  say,  $99,500 
worth  of  the  company's  stock  at  par,  in  pay- 
ment for  said  patents,  which  would  leave  $500 
— to  make  the  full  $100,000 — which  must  be 
paid  in  cash.  But,  of  course,  this  amount  may 
be  varied  and  made  more  or  less.  The  stock 
being  issued  to  the  patent  owner  and  the  patent 
transfer  to  the  company  being  duly  made,  the 
corporation  is  then  in  possession  of  the  patent 
rights  with  no  means  of  working  them  and  the 
former  patent  owner  is  in  possession  of  $99,500 
of  stock  in  a  corporation  having  no  money  in 
its  treasury  and  no  means  of  doing  business. 
He  then  says:  "To  make  my  stock  valuable 
and  to  promote  the  best  interests  of  the  com- 
pany I  propose  to  give  to  the  treasurer  or  some 
other  person  in  trust  for  the  benefit  of  the  com- 
pany $45,000  of  said  capital  stock,  which  stock 
shall  be  sold  to  provide  a  treasury  fund  for 
carrying  on  the  company's  business."  This  is 
done  and  the  stock  accepted  by  resolution, 
which,  like  the  former  one,  is  spread  on  the 
minutes  of  the  company. 

The  stock  at  this  point  has  been  legally  is- 
sued at  par  and  the  whole  capital  paid  in.  This 
being  done,  the  owners  of  the  stock,  whether 


168  TREASURY  STOCK. 

the  trustee  aforesaid,  acting  under  authority, 
or  the  former  patent  owner,  can  sell  their  stock 
at  any  price  they  see  fit,  whether  it  be  more  or 
less  than  par.  The  directors  of  the  company 
meet  and  pass  a  resolution  authorizing  the  sale 
of  sufficient  treasury  stock  held  by  the  trustee 
for  the  benefit  of  the  treasury,  at  seventy  per 
cent,  of  its  par  value,  to  realize  the  proposed 
$25,000.  This  being  done,  the  stock  can  be 
legally  sold  to  the  parties  who  have  agreed  to 
take  it  or  to  others  if  necessary,  and  the  com- 
pany is  then  in  possession  of  $25,000  in  its 
treasury  and  a  reserve  treasury  fund  of  stock 
which  can  be  sold  if  need  be.  The  parties, 
agreeing  to  take  the  stock  at  seventy  per  cent, 
of  its  value,  have  their  stock  legally  issued,  and 
the  former  patent  owner  is  in  possession  of  ap- 
proximately fifty-five  per  cent,  of  the  capital 
stock.  This  leaves  the  inventor  in  safe  control 
of  the  company  and  if  he  wishes  to  sell  a  few 
thousand  dollars'  worth  of  stock  he  can  do  so 
and  still  retain  a  safe  interest,  or,  at  the  proper 
time,  he  can  unload  entirely,  if  he  prefers  to 
do  so.  Unless  the  party  who  has  been  instru- 
mental in  organizing  the  company  can  sell 
sufficient  stock  to  satisfy  him  with  the  price 
obtained  for  his  patent,  he  should,  either  indi- 
vidually or  in  connection  with  some  reliable 
friends,  retain  the  controlling  interest,  that  is, 
more  than  fifty  per  cent,  of  the  company's 


CONTROLLING  INTEBEST.  169 

stock.  If  he  does  not  intend  to  stay  with  the 
company,  he  can  sell  all  the  stock  possible  or 
wait  until  the  company  is  well  under  way  and 
sell  it,  perhaps,  for  a  greater  price,  but  if  the 
corporation  is  intended  to  do  a  business  with 
which  the  patentee  and  associates  are  identi- 
fied, he  and  his  friends  should  retain  control. 

In  almost  every  corporation,  every  stock- 
holder is  entitled  to  one  vote  for  each  share  of 
stock  owned  or  represented  by  him.  It  will  be 
seen  then  that  if  the  patentee  and  his  associates 
held  less  than  fifty  per  cent,  of  the  stock  it 
would  be  possible  for  the  other  stockholders  to 
combine  and  elect  all  the  directors  and  other 
officers  of  the  company  which  are  chosen  by  the 
stockholders.  It  is  well  understood  that  prac- 
tically all  the  powers  of  a  corporation  are  left 
with  the  directors  and  if  it  should  happen  that 
the  directors  and  the  majority  interest  referred 
to  should  be  inimical  to  the  patentee  and 
associates,  they  might  do  such  acts  as  would 
make  his  interest  practically  worthless.  They 
could  fill  all  the  offices,  vote  themselves  sala- 
ries to  which  they  might  not  be  justly  entitled, 
and  in  many  ways  work  for  their  own  interests 
to  the  exclusion  of  that  of  the  patentee.  It  is 
well  understood  that  the  controlling  interest  in 
a  corporation  is  necessary  unless  several  of  the 
stockholders  have  some  means  of  knowing  that 
the  affairs  of  the  company  will  be  honestly  ad- 


170  TKUSTEE  FOE  COBPOBATION. 

ministered  in  the  interest  of  each  and  every 
stockholder.  For  this  very  reason,  parties  are 
sometimes  loath  to  invest  in  a  corporation  unless 
satisfied  as  to  the  control.  They  may,  there- 
fore, hold  aloof  from  investing,  if  the  patentee 
and  promoter  of  the  corporation  is  to  have  the 
controlling  interest.  In  such  a  case,  he  can  ar- 
range by  suitable  agreement  to  have  the  con- 
trolling interest  in  the  stock  pooled,  and  voted 
in  such  a  way  for  a  definite  term  that  the  inter- 
ests of  the  incoming  shareholders  and  himself 
can  be  equally  looked  after.  Or  he  can  arrange 
with  them  that  for  a  certain  period  each  party 
shall  be  represented  by  a  certain  number  of 
directors  in  the  corporation. 

If  the  incoming  or  first  shareholders  insist  on 
having  the  controlling  interest  of  the  company, 
the  inventor  may  perhaps  meet  their  views  and 
protect  himself  in  this  way.  He  can  assign  his 
patent  or  patents  to  some  person  or  corporation 
in  trust  to  hold  for  his  benefit.  The  trustee 
can  then  give  to  the  new  corporation  an  exclu- 
sive license  to  make,  use  and  vend  the  invention 
and  any  improvements  thereon,  but  the  license 
can  stipulate  that  in  the  event  of  the  corpora- 
tion being  wound  up  by  the  Attorney-General, 
or  going  into  the  hands  of  a  receiver,  or  per- 
forming certain  specified  acts  which  would  be 
injurious  to  the  patentee,  then,  in  such  case,  the 
license  shall  be  forfeited  and  the  patent  with 


SELLING  STOCK.  171 

all  its  rights  revert  to  the  trustee.  There  are 
many  advantages  in  handling  an  invention 
through  a  corporation  having  a  board  of  able 
directors.  If  the  men  constituting  the  board 
are  good  business  men,  their  advice  and  experi- 
ence are  of  great  advantage  in  properly  pushing 
the  invention.  Then,  as  already  stated,  no  one 
is  individually  liable  for  the  debts,  defaults  or 
misdoings  of  another  unless  it  be  a  case  of 
fraud  to  which  he  is  a  party,  and  no  one  of 
them  is  liable  for  the  debts  or  losses  of  the  cor- 
poration. 

It  will  be  seen  that  the  organization  of  a  cor- 
poration is  comparatively  simple,  but  the  pat- 
entee may  yet  be  at  a  loss  to  know  how  to 
interest  parties  to  the  extent  of  taking  stock. 
This  must  be  by  his  personal  efforts,  supple- 
mented, as  stated  in  a  preceding  chapter  con- 
cerning sales,  by  the  efforts  of  those  who  can 
help  him.  Unless  he  can  go  to  parties  known 
to  him  and  interest  them  directly — parties  who 
will  from  their  knowledge  rely  on  him  to  a  cer- 
tain extent  as  well  as  on  the  invention — he  must 
have  means  to  show  them  that  money  can  be 
made  out  of  the  enterprise.  There  is  plenty  of 
capital  seeking  investment,  but  it  must  be  made 
plain  that  there  is  a  probability  of  success.  To 
show  this  the  inventor  should  have  some  means 
of  properly  showing  up  his  invention.  If  he 
has  sufficient  money  to  build  the  machine  or 


172  PBOSPECTUS. 

article  of  manufacture,  or  to  illustrate  the  pro- 
cess, as  the  case  may  be,  he  should,  by  all 
means,  do  it.  It  is  well  then  to  get  up  a  good 
statement  or  prospectus,  showing  just  what  the 
invention  is,  what  its  uses  are,  the  probable  ex- 
tent to  which  it  will  be  used  and  the  profits 
which  should  be  derived  under  given  condi- 
tions. If  he  can  have  an  illustration  of  the  in- 
vention made,  it  is  well  to  have  such  illustration 
on  the  prospectus.  These  prospectuses  should 
be  sent  to  parties  whom  he  has  reason  to  think 
may  have  money  for  investment  and  he  should 
follow  this  matter  up  by  personally  seeing  as 
many  persons  as  possible  and  explaining  to 
them  every  feature  of  the  invention.  He 
should  also  get  them,  if  he  can,  to  make  a  per- 
sonal inspection  of  the  working  invention,  if 
such  has  been  made.  If  the  inventor  is  not  a 
man  competent  to  make  a  good  presentation  of 
his  case,  he  had  better  secure  the  services  of 
some  one  who  is  well  skilled  in  such  business, 
and  he  can  afford  to  pay  him  well,  but  of  this 
matter  we  shall  treat  in  the  following  chapter 
on  promoters. 

The  inventor  need  not  be  overcautious.  He 
must  bear  in  mind  that  if  the  invention  he  offers 
is  really  a  good  thing,  he  is  working  an  advan- 
tage to  the  people  whom  he  interests  and  he 
must  remember  that  it  takes  hard  and  persist- 
ent work  to  float  any  enterprise.  Let  him  con- 


BUILDING  UP  A  BUSINESS.  173 

sider  while  doing  it  that  if  lie  carries  the  inven- 
tion through,  he  raises  himself  from,  perhaps, 
a  life  of  poverty  to  one  of  comparative  comfort. 
Let  him  remember  the  statement  attributed 
to  Solomon  :  "  Yet  a  little  sleep,  a  little  slum- 
ber, a  little  folding  of  the  hands  to  sleep,  so 
shall  thy  poverty  come  upon  thee  as  a  robber 
and  thy  want  as  an  armed  man."  Of  course, 
it  is  nice  if  one  can  sit  down,  send  out  his  pros- 
pectuses and  have  investors  come  trooping  up 
anxious  to  subscribe  to  his  stock,  but  things  do 
not  happen  in  this  way  and  as  "  eternal  vigi- 
lance is  the  price  of  liberty,"  so  eternal  hustle 
is  the  price  of  success.  Let  him  go  into  this 
matter  with  enthusiasm  and  work  intelligently 
and  earnestly,  even  at  the  risk  of  boring  some 
few  people,  and  he  will  be  surprised  to  see  what 
results  he  can  accomplish.  One  can  do  any- 
thing in  reason  if  he  only  works  hard  enough 
and  makes  sufficient  sacrifices.  It  is  a  good 
scheme  to  introduce  an  invention  by  means  of  a 
corporation  if  the  promoter  is  honestly  intent 
on  building  up  a  good  business,  because,  with 
all  due  respect  to  the  inventor,  he  is  not  usually 
a  man  of  details,  is  not  always  accustomed  to 
the  minutsD  and  intricacies  of  a  commercial 
business  and  is  much  more  successful  if  he  has 
the  cooperation  of  men  trained  in  this  line. 

In  this  chapter  the  term  promoter  is  used  to 
define  the  one  who  instigates  the  organization 


174  COMBINING  COKPOBATIONS. 

of  the  corporation,  but  the  term  is  used  gen- 
erally and  in  distinction  of  the  definite  promo- 
ter who  has  come  to  have  a  recognized  place  in 
the  commercial  world  and  to  whom  it  is  pro- 
posed to  devote  a  chapter. 

An  example  has  been  given  of  a  hundred 
thousand  dollar  corporation  in  which  it  was 
proposed  to  raise  $25,000  as  a  cash  working 
capital.  It  will  be  understood  from  this  that 
the  terms  and  conditions  can  be  varied  indefi- 
nitely. Perhaps  a  shrewd  inventor  who  is  or- 
ganizing a  corporation  has  in  mind  the  combin- 
ing of  several  other  concerns  engaged  in  an 
analogous  business.  In  such  case  he  should 
make  his  corporation  relatively  large.  He  may 
not  need  more  than  $25,000  in  money  ;  he  may 
not  need  even  so  much  as  this.  But  he  may 
have  in  mind  the  absorption  of  perhaps  half  a 
dozen  concerns  already  established.  The  other 
concerns  may  have  more  business  and  he  may 
have  an  improved  means  of  carrying  on  the 
business  so  that  by  combining  with  them  he 
gets  the  field  and  the  better  means  of  work- 
ing it. 

We  will  suppose  that  he  can  show  that  the 
combined  profits  of  the  concern  under  existing 
conditions  would  pay  dividends  on  say  two 
million  dollars  of  capital  and  perhaps  he  can 
show  that  by  the  combination  which  will  reduce 
expenses  and  by  the  introduction  of  his  improved 


PBEFERKED  STOCK.  175 

means,  the  concern  will  pay  good  dividends  on 
five  million  dollars.  Let  him  organize  his  new 
company  for  five  million  dollars,  paying  in  his 
capital  in  the  manner  already  set  forth,  but 
setting  aside  a  relatively  large  proportion  of  the 
stock  for  the  use  of  the  treasury.  This  is  rather 
an  ambitious  attempt  and,  of  course,  the  man 
who  simply  brings  in  his  improved  means 
should  not  expect  to  keep  the  controlling  in- 
terest in  the  combination  effected  by  the  new 
corporation.  Each  party  to  the  combination 
will,  of  course,  expect  a  fair  representation, 
but  after  he  has  organized,  and  possibly  before, 
he  can  arrange  with  the  parties,  so  that  each 
will  turn  over  its  property  or  at  least  the  man- 
agement and  control  of  the  business  to  the  new 
corporation,  taking  in  payment  therefor  a  cer- 
tain amount  of  the  stock,  and  after  this  com- 
bination is  effected  the  inventor  should  find 
himself  in  possession  of  sufficient  stock  in  a 
solid  corporation  to  amply  pay  him  for  his  in- 
ventions and  patents  which  he  has  contributed. 
He  should  also  find  himself  in  possession  of 
stock  sufficient  to  well  pay  him  for  the  labor 
involved  in  effecting  the  combination  and, 
finally,  he  will  have  a  powerful  corporation  be- 
hind his  improvements  ready  to  push  them  to 
success. 

Preferred  Stock. — Many  investors  who  are 
not  speculators  would  rather  feel  reasonably 


176  PBEFEKBED  STOCK. 

sure  of  a  small  income  than  to  have  a  fair  pros- 
pect of  getting  a  large  income  if  the  latter  was 
contingent  on  a  chance  of  failure.  Sometimes, 
therefore,  it  is  better  in  organizing  a  new  cor- 
poration to  provide  for  a  certain  amount  of  pre- 
ferred stock  which  shall  take  the  first  earnings 
for  a  dividend,  even  though  the  common  stock 
may  earn  much  more  than  the  preferred  stock, 
or  may  earn  nothing.  It  will  be  supposed,  as 
in  the  first  instance  given,  that  it  is  necessary 
to  raise  twenty-five  thousand  dollars  in  cash. 
When  the  corporation  is  organized,  instead  of 
providing  the  treasury  fund  as  suggested,  a 
portion  of  the  forty -five  per  cent,  of  stock  de- 
voted to  treasury  purposes— say  twenty-five 
thousand  dollars  of  it — is  made  preferred  stock 
to  draw  six  or  seven  per  cent,  interest,  as  the 
case  may  be.  Then  instead  of  offering  the-stock 
for  a  relatively  low  price  it  is  offered  at  par. 
The  nature  of  the  stock  is  this :  It  is  not  in  the 
nature  of  bonds  secured  by  mortgage  on  the 
property  of  the  corporation,  but  it  is  provided 
by  the  articles  of  incorporation  that  the  earn- 
ings of  the  corporation  shall  be  applied  to  pay 
the  fixed  dividend  called  for  on  the  preferred 
stock  before  any  such  earnings  are  applied  as 
dividends  on  the  common  stock.  There  may 
be  sufficient  business  in  sight  to  make  it  evident 
that  the  preferred  stock  dividends  will  certainly 
be  earned.  In  this  case,  the  stock  will  readily 


PREFERRED  STOCK.  177 

sell  for  par  and  will  be  worth  much  more  than 
the  common  stock.  Preferred  stock  may  sell  for 
par — say  one  hundred  dollars  per  share — when 
perhaps  the  common  stock  will  hardly  sell  at 
thirty  dollars,  but  the  preferred  stock  can  never 
earn  more  than  the  amount  stipulated,  say  six 
per  cent.  If  then  the  corporation  is  successful 
and  earns  in  a  year  enough  to  pay  twenty  per 
cent,  in  dividends,  six  per  cent,  will  go  to  pay 
the  preferred  stock  dividend  and  the  balance 
will  be  dividends  on  the  common  stock.  If  this 
condition  of  things  occurs  then  the  common 
stock  will,  of  course,  be  worth  more  than  twice 
as  much  as  the  preferred  stock. 

In  small  corporations  it  is  not  customary  to 
issue  preferred  stock,  but  there  is  no  special 
reason  why  it  should  not  be  done  and  some- 
times it  affords  the  readiest  way  of  raising  the 
necessary  money.  The  State  laws  as  to  pre- 
ferred and  common  stockholders  vary  and  the 
by-laws  of  the  company  also  have  something  to 
do  with  the  conditions  governing  the  preferred 
and  common  stock.  In  many  cases  the  preferred 
stockholders  have  no  vote,  while  in  other  cases 
they  have  the  same  voting  privileges  as  the 
common  stockholders.  This  should  be  pro- 
vided for  in  the  articles  of  incorporation  and, 
if  thought  necessary,  the  preferred  stockholders 
may  even  be  given  an  advantage  in  voting 
power.  The  preferred  stock  may  consist  in  this : 


178  PBEFEEBED  STOCK. 

That  it  draws  the  same  dividends  as  the  common 
stock,  but  it  may  be  provided  that  each  share 
of  preferred  stock  shall  have  one  full  vote  and 
each  share  of  common  stock  a  fractional  vote. 
This  will,  of  course,  make  the  preferred  stock 
more  valuable,  not  only  on  the  start  but  for  the 
whole  existence  of  the  corporation. 

It  may  be  that  the  offer  of  preferred  stock  at 
par  will  not  be  sufficient  to  induce  people  to 
invest,  and  if  the  showing  is  not  quite  good 
enough  to  insure  this  investment  it  is  well  to 
have  sufficient  treasury  stock  so  that  for  every 
share  of  preferred  stock  subscribed  a  share  of 
common  stock  can  be  given  as  a  bonus.  This 
gives  the  subscriber  a  particularly  good  show- 
ing and  it  may  be  necessary  and  advisable  to  do 
this.  In  this,  as  in  other  cases,  the  patentee  or 
promoter  must  be  governed  by  circumstances 
and  must  gauge  his  capital  and  amount  of  stock 
to  be  sold  and  given  as  a  bonus  so  as  to  still 
leave  him,  if  possible,  with  the  controlling  in- 
terest, or  with  an  equivalent  therefor.  In  or- 
ganizing  a  corporation  the  capital  should  be 
made  not  too  large  but  still  large  enough  so 
that  the  first  stock  can  be  sold  at  less  than  par. 
It  is  a  peculiarity  of  human  nature  that  a  per- 
son must  think  that  he  is  getting  a  bargain  and 
must  believe  he  is  buying  stock  less  than  par 
on  the  start  to  induce  him  to  invest.  We  do 
not  know  how  to  account  for  this.  People  who 


BONDS.  179 

are  constantly  dealing  in  stocks  and  know  that 
the  ultimate  value  must  depend  on  what  they 
pay  are  still  affected  by  the  par  value — that  is 
to  say,  if  a  thing  is  worth  one  hundred  thou- 
sand dollars  and  is  stocked  for  ten  thousand 
dollars,  a  man  familiar  with  stocks  would  know 
that  the  stock  is  worth  one  thousand  dollars  a 
share,  but  he  still  would  wish  to  buy  for  less 
than  par,  even  if  this  were  one  dollar,  and  if  the 
company  is  overstocked  he  does  not  make 
allowance  for  the  overstocking  if  he  buys  the 
stock  for  a  good  deal  less  than  par.  This  is  a 
singular  fact  but  it  is  one  borne  out  by  the 
experience  of  every  person  who  has  had  any- 
thing to  do  with  organizing  and  promoting 
corporations.  The  organizer  should  therefore 
make  his  capital  large  enough  so  that  he  can 
cater  to  this  feeling  and  sell  his  stock  at  a  sub- 
stantial reduction  from  its  par  value  and  still 
realize  what  he  thinks  is  right. 

Bonds.— Instead  of  raising  money  by  the 
sale  of  treasury  stock  or  by  providing  a  treasury 
fund,  it  may  be  preferable  to  mortgage  the 
property  of  the  company,  if  it  have  tangible 
property,  to  secure  a  definite  amount  of  bonds 
which  can  then  be  sold — their  price,  of  course, 
depending  on  whether  the  mortgaged  property 
and  the  income  therefrom  is  ample  to  meet  the 
interest  and  principal  represented  by  the  bonds. 
This  bonding  is  a  simple  matter  and  the  prin- 


180  SUBSCRIPTION  LIST. 

ciples  governing  it  are  practically  the  principles 
relative  to  the  ordinary  bond  and  mortgage  of 
real  or  other  property,  except  that  the  bond  in- 
stead of  issuing  to  a  single  person  is  usually 
issued  by  a  trustee,  to  whom  the  mortgage  is 
given,  and  instead  of  being  a  single  bond  is  made 
in  the  form  of  many  bonds.  There  is  no  rule 
governing  the  par  value  of  bonds,  but  their  de- 
nomination is  usually  one  thousand  dollars  and 
to  make  them  specially  acceptable  both  prin- 
cipal and  interest  should  be  made  payable  in 
gold. 

Subscription  List.— A  few  parties  having 
agreed  to  take  part  in  the  organization  of  the 
corporation  and  to  take  a  certain  amount  of 
stock  at  a  certain  price,  no  subscription  list  is 
usually  required,  but  if  it  is  not  known  how 
many  parties  will  participate  and  it  is  desired 
to  get  enough  to  raise  a  certain  amount  of 
money,  and  if  such  an  amount  is  really  essen- 
tial, then  it  is  well  to  provide  a  subscription 
list,  which  the  prospective  stockholders  may 
sign  and  by  which  they  agree  to  take  a  certain 
number  of  shares  of  stock  at  a  certain  price  per 
share.  Under  ordinary  conditions  the  price 
must  be  par,  but  as  pointed  out  the  stock  may 
be  sold  at  a  different  price  by  first  paying  it  in 
by  way  of  a  property  transfer  and  then  selling 
it.  If  this  is  to  be  done  the  manner  in  which 
it  is  to  be  done  should  be  set  forth  in  the  sub- 


SUBSCRIPTION  LIST.  181 

scription  list.  The  subscription  list  should  also 
state  under  what  State  or  Territory  the  corpora- 
tion is  to  be  organized,  the  total  amount  of  its 
capital  stock,  the  amount  to  be  paid  in  and  how 
it  is  paid  in,  and  all  the  conditions  governing 
the  organization.  Everything  governing  the 
organizing  and  starting  of  the  company  should 
be  fully  and  frankly  set  forth,  so  that  each  sub- 
scriber may  know  all  the  conditions  and  cannot 
say  that  he  signed  under  a  misapprehension 
and  cannot  accuse  any  of  the  parties  to  the  or- 
ganization of  fraudulent  or  sharp  practices.  If 
the  organization  is  to  be  successful  the  parties 
thereto  must  start  with  a  frank  and  full  under- 
standing of  all  the  circumstances  of  the  case. 
While  usually  there  are  strong  temptations  to 
depart  from  this  rule,  yet  it  will  be  found  in 
the  end  that  it  is  the  only  sure  and  safe  one. 
It  is  better  to  start  right,  even  though  it  be  a 
little  harder  to  make  the  start.  It  will  be  seen, 
of  course,  that  the  form  of  a  subscription  list 
will  vary  according  to  circumstances  and  in  the 
Appendix  forms  have  been  given  which  can  be 
varied  to  suit  most  cases. 


182 


CHAPTER  IV. 

THE    PROMOTER. 

The  promoter  is  one  of  the  new  things  of  the 
past  generation  which  does  not  come  under  the 
head  of  patentable  subject-matter.  A  few  years 
since  and  he  was  a  curiosity  ;  a  few  years  later 
he  was  looked  upon  as  a  person  to  be  avoided 
as  one  would  avoid  the  plague,  and  finally,  in 
the  face  of  much  tribulation,  he  has  come  to 
have  a  defined  and  recognized  place  in  the  busi- 
ness community.  It  is  true  that  there  are  still 
many  promoters,  so  called,  who  are  of  no  earth- 
ly use,  who  are  unmitigated  bores  and  who  are 
nuisances  generally.  But  the  genuine  article, 
the  real  promoter,  is  a  person  of  a  good  deal  of 
ability  and  of  a  great  deal  of  use  in  the  world. 

This  is  now  generally  understood.  The  pro- 
moter who  is  worthy  of  the  name  will  not 
undertake  to  push  to  completion  a  business 
scheme  unless  he  can  see  that  the  scheme  is  a 
good  one  and  promises  profit  to  himself,  his 
client  and  investors.  In  connection  with  the 
term  many  people  will  immediately  call  to 
mind  the  famous  " Humbug"  Hooley,  of  Lon- 


THE  PROMOTES.  183 

don,  and  the  havoc  he  wrought  among  investors 
and  among  the  nobility,  but,  notwithstanding 
the  fact  that  Hooley  and  many  others  have 
been  examples  of  all  that  is  bad  in  business, 
still  there  are  promoters  who  are  honest,  capa- 
ble and  valuable  members  of  the  business  world. 
There  is  an  old  saying  to  the  effect  that  it  is 
what  a  man  saves  that  makes  him  wealthy,  and 
not  what  he  makes,  but  this  doctrine  is  all 
right  for  infants  in  finance,  though  on  second 
thought,  even  the  primitive  financiers  are  un- 
able to  see  how  to  save  out  of  an  ordinary 
salary  or  income  the  amount  represented  by 
the  colossal  fortunes  which  have  been  accumu- 
lated in  this  country  within  the  last  few  years. 
A  man  has  time,  no  doubt,  to  lay  up  treas- 
ures in  heaven  during  his  short  career,  but  if 
he  wishes  to  get  rich  he  cannot  do  it  by  the 
old-fashioned  process,  though,  no  doubt,  this 
is  commendable.  At  the  present  time  wealth  is 
usually  made  quickly,  if  at  all.  A  party  finds 
himself  in  possession  of  a  good  thing,  and  he 
pushes  it,  and  makes  the  most  of  it  while  he 
can  do  so,  and  before  competition  cuts  his 
profit.  It  is  necessary  to  do  business  on  a  big 
scale  and  rush  it  to  the  last  limit  while  it  can 
be  done  at  a  profit,  and  this  can  be  done  by 
means  of  a  large  corporation  better,  perhaps, 
than  in  any  other  way.  The  connection  be- 
tween this  subject  and  the  text,  to  wit,  the 


184  THE  PEOMOTER. 

promoter,  is  that  many  of  the  eminent  finan- 
ciers and  business  men  of  America  have  first 
been  promoters,  and,  in  fact,  many  of  them  are 
nothing  else  now,  and  the  successful  promoter 
must  be  paid,  because  he  succeeds  in  helping 
his  clients,  who  therefore  are  made  wealthy  by 
the  same  process  which  makes  him  wealthy. 
It  is  doubtless  understood  that  if  a  stock  com- 
pany be  successfully  promoted  on  the  lines 
already  laid  out  it  is  one  of  the  quickest  ways 
known  to  make  a  great  deal  of  money,  and  it 
may  be  perfectly  legitimate  so  far  as  the  in- 
ventor, promoter  and  investors  are  concerned, 
for  it  should  be  the  case  that  the  promoter,  by 
interesting  the  investors  in  the  company  and 
invention,  works  a  benefit  to  all  parties  con- 
cerned. 

A  promoter  is  one  who  encourages  and  car- 
ries forward  a  business  scheme  with  a  view  of 
getting  capital  interested  in  it,  and  more  espe- 
cially one  who  carries  forward  such  a  scheme 
by  means  of  a  joint-stock  company  or  corpora- 
tion. This  may  be  by  organizing  an  original 
corporation  to  acquire  certain  property  and  af- 
terward manipulate  and  work  it  in  a  business 
way,  or  it  may  be  in  the  organizing  of  a  large 
company,  beginning  to  be  technically  known 
as  a  trust,  for  the  purpose  of  absorbing  a  series 
of  smaller  corporations.  This  is  an  age  of  spe- 
cialties and  specialists,  and  it  is  found,  as  a 


THE  PROMOTER.  185 

rule,  that  a  skilled  specialist  can  do  much  bet- 
ter in  his  line  than  can  a  person  not  so  specially 
skilled,  even  though  the  latter  may  be  a  very 
able  man.  For  this  reason,  in  disposing  of  a 
patent  or  a  patent  interest  by  means  of  a  joint- 
stock  company  or  otherwise,  the  patentee  may 
not  be  competent  or  sufficiently  skilled  to  pro- 
mote the  company  himself,  and  it  may  be  to  his 
interest  to  call  in  the  service  of  a  skilled  pro- 
moter. In  doing  this,  let  him  ascertain,  first, 
that  the  promoter  is  skilled ;  secondly,  that  he 
is  honest.  This  being  done,  he  will  find  that 
the  promoter  asks  so  much  for  his  services  that 
he  will  hesitate  about  employing  them.  But, 
remembering  the  old  adage  that  "Half  a  loaf  is 
better  than  no  bread,"  he  will  probably  make 
terms  with  the  promoter.  In  doing  this  he 
should  be  put  to  no  actual  expense,  because 
the  promoter  will  not  take  up  the  matter  pro- 
posed unless  it  is  promising,  and  if  this  is  the 
case  he  will  ask  for  a  large  contingent  interest. 
If  the  results  are  to  be  in  cash,  he  will  expect  a 
substantial  percentage  of  the  cash,  and  if  a  part 
of  the  receipts  are  stock,  he  will  expect  a  good 
interest  in  the  stock,  and  he  is  worth  it.  There 
was  a  time  when  investors,  if  they  invested  at 
all,  insisted  on  being  the  first  in  an  enterprise, 
unless  it  was  already  paying,  because  they 
wished  to  be  sure  of  "getting  in  on  the  ground 
floor,"  and  while  this  is  still  true,  yet  these 


186  THE  PKOMOTEK. 

people  recognize  the  value  of  the  promoter's 
services,  and  are  willing  to  consider  that  the 
person  who  formulates  the  new  scheme  and 
carries  it  forward  to  success  is  worthy  of  his 
hire,  and  should  receive  substantial  recognition. 

It  is  generally  known  that  the  bulk  of  the 
work,  either  in  organizing  a  new  company  and 
interesting  capital,  or  in  effecting  a  combina- 
tion of  established  concerns,  falls  on  the  pro- 
moter, and,  as  above  stated,  investors  expect  to 
pay  for  this  work.  It  is  this  very  work  which 
makes  the  proposed  scheme  profitable.  It  is  no 
small  undertaking  to  combine  large  interests 
which,  for  instance,  have  up  to  the  moment  of 
combination  been  battling  with  each  other,  or 
to  induce  large  investments  in  an  untried 
scheme.  As  an  instance  of  the  promoter's 
recognized  value,  it  is  said  that  a  Pittsburg 
iron  manufacturer  who  in  1898  combined  some 
of  the  immense  iron  and  steel  industries  of  the 
country  under  a  single  management,  made  over 
$2,000,000  out  of  the  operation,  and  while  this, 
of  course,  came  out  of  the  combination,  yet  he 
was  well  worth  the  price,  because  the  saving 
effected  was  something  enormous,  and  only  a 
skilled  man,  knowing  thoroughly  the  people 
with  whom  he  was  dealing,  could  carry  the 
combination  into  effect. 

If  a  party  or  parties  wish  to  sell  the  patent 
rights  by  means  of  a  corporation  organized  for 


THE  PEOMOTEE.  187 

the  purpose,  and  cannot  see  their  way  clear  to 
do  it  themselves,  they  had  better  make  connec- 
tions with  a  good  promoter.  Promoting  a  new 
enterprise  is  a  difficult  thing  to  do.  One  must 
be  never-tiring  in  presenting  the  matter  to  the 
right  people,  and  the  matter  must  also  be  pre- 
sented rightly.  If  the  scheme  is  a  large  one,  it 
is  as  easy  to  float  as  a  small  one,  and  perhaps 
easier,  if  only  the  right  people  can  be  reached. 
There  is  money  enough  for  any  enterprise,  no 
matter  how  gigantic,  if  it  only  promises  suffi- 
cient returns,  but  the  average  man  will  find  it 
easier  to  get  an  interview  with  the  President  of 
the  United  States  than  with  most  any  well- 
known  capitalist  and  investor.  He  will  find  the 
man  he  tries  to  see  so  hedged  about  with  offices, 
office  boys,  clerks,  secretaries  ;  so  many  ques- 
tions asked  him  concerning  his  business,  and 
so  many  obstacles  placed  in  his  way  that  he 
will,  nine  times  out  of  ten,  give  the  matter  up  in 
despair.  But  the  skilled  promoter  does  not 
despair.  He  knows  that  he  has  a  good  thing, 
and  he  is  going  to  see  it  through.  He  has 
found  out,  too,  that  brass  is  almost  as  good  as 
gold  if  rightly  used,  and  he  knows  exactly  how 
to  use  it.  He  is  a  gentleman,  but  he  has  found 
out  that  cheek  must  be  cultivated  and  used. 
He  knows  nearly  everybody,  and,  if  necessary, 
will  know  the  rest  of  mankind.  If  it  is  neces- 
sary to  interview  any  man  on  earth  he  will 


188  THE  PROMOTER. 

manage  to  interview  him.  He  gets  himself  in- 
vited to  dinners,  the  Lord  knows  how,  and  he 
gets  into  exclusive  sets  in  some  way  or  other. 
He  comes  to  a  capitalist  with  an  introduction 
which  cannot  be  ignored,  he  wriggles  and  twists 
and  works,  and  finally  gets  what  he  is  after. 

The  capitalist  of  to-day  is  the  promoter  of 
yesterday.  If  he  has  succeeded  a  few  times  he 
ceases  to  be  a  promoter  except  on  his  own  ac- 
count, but  there  are  many  smart,  energetic 
promoters  who  are  in  this  transitory  stage  from 
unknown  private  citizens  to  well-known  capi- 
talists, and  their  services  can  be  enlisted  in 
promising  enterprises.  It  is  our  experience 
that  it  often  pays  to  use  them,  though  care 
must  be  exercised  in  their  selection,  as  in 
everything  else.  A  third  person  who  is  really 
competent,  and  who  has  a  good-sized  interest 
at  stake,  can  frequently  talk  up  an  enterprise 
better  than  the  prime  mover,  and  when  ques- 
tions begin  to  reach  some  definite  conclusion, 
and  propositions  are  being  made,  and  perhaps 
accepted,  it  is  sometimes  an  advantage  to  be 
able  to  say  that  one  must  see  another  party  be- 
fore deciding. 

Finally,  we  consider  the  promoter  who  is 
really  successful,  one  of  the  smartest  and  most 
energetic  men  on  earth.  He  does  not  lend  him- 
self to  questionable  schemes,  but  if  there  is 
merit  in  one  with  which  he  is  connected  he  is 


THE  PROMOTER.  189 

going  to  see  the  matter  pushed  to  a  successful 
issue,  if  it  is  possible  to  be  done.  He  takes 
large  risks ;  he  spends  money  freely,  he  loses 
nonchalantly,  and  if  he  wins  he  wins  large 
stakes,  and  is  entitled  to  them.  We  commend 
him  to  people  who  are  engaged  in  carrying  for- 
ward any  new  enterprise,  unless  the  prime 
mover  happens,  as  is  sometimes  the  case,  to  be 
skilled  in  this  line  himself.  Let  the  inventor 
make  an  alliance  with  a  good  promoter  and 
carry  through  one  good  scheme  to  a  successful 
conclusion,  and  he  has  had  a  liberal  education 
in  financial  methods,  and  will  see  how  money 
is  made  quickly  instead  of  by  the  old-time  pro- 
cesses referred  to  above ;  he  may  even  graduate 
into  a  promoter-inventor,  and  finally  into  a 
capitalist  himself.  We  are  not  moralizing  on 
whether  the  acquisition  of  quick  wealth  is 
strictly  in  accordance  with  good  ethics,  but  are 
simply  trying  to  show  the  not-over-rich  in- 
ventor how  he  can  compete  with  others  and 
gather  in  his  share  of  money,  and  whether  or 
not  the  game  is  worth  the  candle  we  leave  to 
him. 


190 
OFFICIAL  FEES. 

Fees  payable  to  the  Patent  Office  must  be 
paid  in  advance  and  upon  making  application 
for  any  action  in  which  a  fee  is  payable. 

The  following  is  a  schedule  of  fees  for  pat- 
ents,  trade-marks,  labels,  prints,  etc. : 
On  filing  each  original  application  for  a 

patent,  except  in  design  cases,         .  $15.00 
On  issuing  each  original  patent,  except 

in  design  cases-,         .        .        .        .    20.00 
In  design  cases : 

For  three  years  and  six  months,          .     10.00 

For  seven  years,  .        ,        .        .        .    15.00 

For  fourteen  years,      .        rf        .        .     30.00 

On  filing  each  caveat,      ....    10.00 

On  every  application  for  the  reissue  of  a 

patent,       .        .        .        .        ;        .     30.00 
On  filing  each  disclaimer,        .        .        .    10.00 
On  an  appeal  for  the  first  time  from  the 
Primary  Examiners  to  the  Exam- 
iners-in-Chief,  .        .        .V       .     10.00 
On  every  appeal  from  the  Examiners-in- 

Chief  to  the  Commissioner,      .  •     .    20.00 
For  certified  copies  of  printed  patents  : 
For  specification   and   drawing,   per 

copy,  .  ."•  •  •  •  ...-.;•  -05 
For  the  certificate,  .  .  ,  v  .25 
For  the  grant,  .  .  .  ;|  >  .50 
For  certifying  to  the  duplicate  of  a 

model,        .      "  v        .        .    ^-~;        . !       .50 


OFFICIAL  FEES.  191 

For  manuscript  copies  of  records,  for 
every  one  hundred  words  or  frac- 
tion thereof, $0.10 

If  certified,  for  the  certificate,  addi- 
tional,       .        .        •        •        •        •        .25 
For  uncertified  printed  copies  of   the 
specifications    and     accompanying 
drawings  of  patents,  each,        t        .        .05 
When  ordered  by  subclasses,  each,     .        .03 
When  ordered  by  classes,  each,  .        .        .02 
And  when  the  entire  set  of  all  patents 

granted  is  ordered,  each,  .  .  .  .01 
For  the  drawings,  if  in  print,  .  .  .  .05 
For  copies  of  drawings  not  in  print  the 

reasonable  cost  of  making  them. 
For  recording  every  assignment,  agree- 
ment, power  of  attorney  or  other 
paper,  of  three  hundred  words  or 
under,         .        .     -,"•        .        .        .      1.00 
Of  over  three  hundred  and  under  one 

thousand  words,        .        ^       .        .      2.00 
Of  over  one  thousand  words,        .        .      3.00 
On  filing  an  application  for  registration 

of  a  trade- mark,  .  .  .  .25.00 
On  filing  an  application  for  registration 

of  a  label, 6.00 

On  filing  an  application  for  registration 

of  a  print, 6.00 


APPENDIX 


195 


APPENDIX 

In  the  Appendix  is  given  a  few  of  the  forms 
which  are  more  often  used,  and  while  any  spe- 
cific form  is  not  essential  still  it  is  well  to  fol- 
low the  custom  in  this  respect  as  an  instrument 
of  the  usual  character  can  be  more  readily  con- 
strued. 

No  specific  form  of  acknowledgment  is  given 
on  the  several  forms  of  assignment  because  this 
varies  with  different  States  and  it  is  well  to  fol- 
low the  form  used  in  the  State  where  the  in- 
strument is  executed. 

It  will  be  noticed  that  in  the  assignment 
before  issue,  a  request  is  made  to  the  Commis- 
sioner of  Patents  to  have  the  patent  issue  to  the 
assignee.  This  is  not  essential,  but  is  usually 
advisable.  If,  however,  there  is  any  reason 
why  it  should  not  so  issue,  the  clause  making 
the  request  can  be  omitted. 


196  APPENDIX. 

ASSIGNMENT  OF   AN  ENTIRE  INTEREST  IN  AN 

INVENTION  BEFORE   THE  ISSUE  OF 

LETTERS   PATENT. 

Whereas,  I,  John  Jones,  of  the  City,  County  and 
State  of  New  York,  have  invented  certain  new  and 
useful  Improvements  in  Can  Openers  for  which  I  am 
about  to  make  application  for  Letters  Patent  of  the 
United  States,  which  application  I  have  signed  and 
executed  this day  of 189 . .  ;  and 

Whereas,  James  Smith,  of  Boston,  in  the  County  of 
Suffolk  and  State  of  Massachusetts,  is  desirous  of  ac- 
quiring the  entire  interest  in  the  aforesaid  invention 
and  in  the  Letters  Patent  to  be  issued  therefor  ; 

Now,  Therefore,  To  all  whom  it  may  concern,  be  it 
known  that  for  and  in  consideration  of  the  sum  of 

dollars  and  other  valuable  considerations  to  me 

in  hand  paid,  the  receipt  of  which  is  hereby  acknowl- 
edged, I,  the  said  John  Jones,  have  sold,  assigned  and 
transferred,  and  by  these  presents  do  sell,  assign  and 
transfer  unto  the  said  James  Smith  the  whole  right, 
title  and  interest  in  and  to  the  aforesaid  invention,  as 
set  forth  in  the  application  above  referred  to,  and  in 
and  to  the  Letters  Patent  which  may  issue  therefor, 
and  I  hereby  authorize  and  request  the  Commissioner 
of  Patents  to  issue  the  said  Letters  Patent  to  the  said 
James  Smith  as  the  Assignee  of  my  entire  right,  title 
and  interest  therein,  for  the  sole  use  and  behoof  of  the 
said  James  Smith  and  his  legal  representatives. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand 
and  affixed  my  seal  this day  of 189 . . . 


Witnesses : 


(Acknowledgment.) 

If  the  assignee  is  a  corporation  the  preamble 
would  be  as  follows : 


APPENDIX.  197 

"  Whereas,  I,  John  Jones,  of  the  City,  County  and 
State  of  New  York,  have  invented  certain  new  and 
useful  Improvements  in  Can  Openers  for  which  I  am 
about  to  make  application  for  Letters  Patent  of  the 
United  States,  which  application  I  have  signed  and 
executed  this day  of 189. .  ;  and 

"  Whereas,  the  Nineteenth  Century  Manufacturing 
Company,  a  corporation  organized  and  existing  under 
the  laws  of  the  Territory  of  Arizona  and  doing  busi- 
ness in  the  City,  County  and  State  of  New  York,  is 
desirous  of  acquiring  the  entire  interest  in  the  same  "  ; 

The  remainder  will  be  substantially  like  the 
body  of  the  assignment  already  given. 

If  both  parties  to  the  transfer  are  corpora- 
tions, the  preamble  will,  of  course,  set  forth 
where  each  company  does  business  and  under 
what  State  or  Territory  it  is  organized. 


ASSIGNMENT   OF  THE  ENTIEE  INTEREST  IN 
LETTERS   PATENT. 

If  the  patent  has  already  issued  it  should  be 
identified  by  title,  number  and  date,  and  the 
assignment  may  then  be  as  follows : 

Whereas,  I,  John  Jones,  of  the  City,  County  and 
State  of  New  York,  did  obtain  Letters  Patent  of  the 
United  States  for  an  Improvement  in  Can  Openers, 

which  Letters  Patent  are  numbered and  bear 

date  the  twenty-fourth  day  of  January,  1899 ;  and 

Whereas,  I  am  now  the  sole  owner  of  the  said  patent 
and  of  all  rights  under  the  same  ;  and 

Whereas,  James  Smith,  of  Boston,  in  the  County  of 


198  APPENDIX. 

Suffolk  and  State  of  Massachusetts,  is  desirous  of  ac- 
quiring the  entire  interest  in  the  same  ; 

Now,  Therefore,  To  att  whom  it  may  concern,  be  it 
known  that  for  and  in  consideration  of  the  sum  of 

dollars  and  other  valuable  considerations  to  me 

in  hand  paid,  the  receipt  of  which  is  hereby  acknowl- 
edged, I,  the  said  John  Jones,  have  sold,  assigned  and 
transferred,  and  by  these  presents  do  sell,  assign  and 
transfer  unto  the  said  James  Smith  the  whole  right, 
title  and  interest  in  and  to  the  said  Improvement  in 
Can  Openers  and  in  and  to  the  Letters  Patent  there- 
for aforesaid,  the  same  to  be  held  and  enjoyed  by  the 
said  James  Smith  for  his  own  use  and  behoof  and  for 
the  use  and  behoof  of  his  legal  representatives  to  the 
fall  end  of  the  term  for  which  said  Letters  Patent  are 
granted  as  fully  and  entirely  as  the  same  would  have 
been  held  and  enjoyed  by  me  had  this  assignment  and 
sale  not  been  made. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand 

and  affixed  my  seal  this day  of 189 . . . 

JOHN  JONES.     (Seal.) 
"Witnesses : 

A.  B. 

C.  D.  (Acknowledgment.) 


ASSIGNMENT  OF  APPLICATION  AFTER  FILING. 

If  the  patent  has  not  been  issued  but  the  ap- 
plication has  been  filed,  the  form  would  be 
substantially  like  the  above,  except  that  instead 
of  quoting  the  number  and  date  of  the  patent, 
the  serial  number  and  date  of  filing  should  be 
given,  and  there  can  be  a  request  to  the  Com- 
missioner of  Patents,  as  in  form  1,  to  issue  the 
patent  to  the  assignee. 


APPENDIX.  199 

ASSIGNMENT  OF    AN  UNDIVIDED  INTEREST  IN 
LETTERS  PATENT. 

If  the  assignee  is  to  have  an  undivided  inter- 
est in  the  invention  and  patent,  the  form  will 
be  as  follows : 

Whereas,  I,  John  Jones,  of  the  City,  County  and 
State  of  New  York,  did  obtain  Letters  Patent  for  an 
Improvement  in  Can  Openers,  which  Letters  Patent 

are  numbered and  bear  date  the  twenty-fourth 

day  of  January,  1899  ;  and 

Whereas,  James  Smith,  of  Boston,  County  of  Suf- 
folk and  State  of  Massachusetts,  is  desirous  of  acquir- 
ing an  interest  in  the  same  ; 

Now,  Therefore,  To  all  whom  it  may  concern,  be  it 
known  that  for  and  in  consideration  of  the  sum  of 

dollars  and  other  valuable  considerations  to  me 

in  hand  paid,  the  receipt  of  which  is  hereby  acknowl- 
edged, I,  the  said  John  Jones,  have  sold,  assigned  and 
transferred,  and  by  these  presents  do  sell,  assign  and 
transfer  unto  the  said  James  Smith  an  undivided  one- 
half  part  of  my  whole  right,  title  and  interest  in  and 
to  the  said  invention  and  in  and  to  the  Letters  Patent 
therefor  aforesaid,  the  said  undivided  one-half  part  to 
be  held  and  enjoyed  by  the  said  James  Smith  for  his 
own  use  and  behoof  and  for  the  use  and  behoof  of  his 
legal  representatives  to  the  full  end  of  the  term  for 
wh;ch  said  Letters  Patent  are  granted  as  fully  and 
entirely  as  the  same  would  have  been  held  and  enjoyed 
by  me  had  this  assignment  and  sale  not  been  made. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand 

and  affixed  my  seal  this day  of 189 . . . 

JOHN  JONES.     (Seal.) 
Witnesses  : 

A.  B. 

C.  D.  (Acknowledgment.) 


200  APPENDIX. 

GEANT  OF  A  TEEEITOEIAL  LNTEEEST  AFTEE 
THE  ISSUE  OF  PATENTS. 

Whereas,  I,  John  Jones,  of  the  City,  County  and 
State  of  New  York,  did  obtain  Letters  Patent  of  the 
United  States  for  an  Improvement  in  Can  Openers, 

which  Letters  Patent  are  numbered and  bear 

date  the  twenty-fourth  day  of  January,  1899  ;  and 

Whereas,  I  am  now  the  sole  owner  of  the  said  patent 
and  all  rights  under  the  same  in  the  territory  herein- 
after mentioned ;  and 

Whereas,  James  Smith,  of  Boston,  County  of  Suf- 
folk and  State  of  Massachusetts,  is  desirous  of  acquir- 
ing an  interest  in  the  same  ; 

Now,  Therefore,  To  all  whom  it  may  concern,  be  it 
known  that  for  and  in  consideration  of  the  sum  of 

dollars  and  other  valuable  considerations,  to 

me  in  hand  paid,  the  receipt  of  which  is  hereby  ac- 
knowledged, I,  the  said  John  Jones,  have  sold,  assigned 
and  transferred,  and  by  these  presents  do  sell,  assign 
and  transfer  unto  the  said  James  Smith  all  the  right, 
title  and  interest  in  and  to  the  said  invention  as  secured 
to  me  by  the  Letters  Patent  above  referred  to,  for,  to 
and  in  the  States  of  Maine  and  New  Hampshire,  and 
the  Counties  of  Essex  and  Suffolk  in  the  State  of 
Massachusetts,  and  for,  to  or  in  no  other  place  or 
places,  the  same  to  be  held  and  enjoyed  by  the  said 
James  Smith  within  and  throughout  the  territory 
mentioned,  but  not  elsewhere,  for  his  own  use  and 
behoof  and  for  the  use  and  behoof  of  his  legal  repre- 
sentatives, &c. 


Witnesses  : 

(Acknowledgment.) 


APPENDIX.  201 

SIMPLE  FOEM   OF  SHOP-RIGHT  LICENSE. 

In  consideration  of dollars,  to  me  in  hand  paid 

by  the  Ajax  Manufacturing  Company,  a  corporation 
organized  and  existing  under  the  laws  of  the  State  of 
Pennsylvania  and  doing  business  in  Philadelphia 
in  said  State,  I  do  hereby  license  and  empower  the 
said  Ajax  Manufacturing  Company  to  manufacture  in 
said  City  of  Philadelphia  the  Improvement  in  Sole 
Edge  Burnishing  Machines,  for  which  Letters  Patent 

of  the  United  States  numbered were  granted  to 

me  on  the  seventeenth  day  of  January,  1899,  and  to 
sell  the  machine  so  manufactured  throughout  the  ter- 
ritory of  the  United  States  to  the  full  end  of  the  term 
for  which  said  Letters  Patent  are  granted. 

Signed  at  the  City  and  County  of  Philadelphia, 
State  of  Pennsylvania,  this  first  day  of  February,  1899. 

A.  B. 

Witnesses  : 
C.  D. 
E.  F. 

FOEM   OF  LICENSE   WITH   EOYALTY. 

This  Agreement,  made  this  eighth  (8th)  day  of  Feb- 
ruary, in  the  year  one  thousand  eight  hundred  and 
ninety-nine  (1899)  by  and  between  A.  B.,  of  Washing- 
ton, District  of  Columbia,  party  of  the  first  part,  and 
C.  D.,  of  Pittsburgh,  Allegheny  County,  Pennsylvania, 
party  of  the  second  part,  Witnesseth  : 

The  party  of  the  first  part  did  on  the  seventh  (7th) 
day  of  February,  1899,  obtain  Letters  Patent  of  the 
United  States  for  an  Improvement  in  Eock  Drills, 

which  Letters  Patent  are  numbered ,  and  the 

party  of  the  second  part  is  desirous  of  entering  into 
the  manufacture  of  said  Eock  Drills  ; 

Now,  Therefore,  In  view  of  the  premises,  and  in  con- 


202  APPENDIX. 

sideration  of  the  sum  of  one  dollar  by  each  to  the 
other  paid,  the  parties  have  agreed  as  follows  : 

First:  The  party  of  the  first  part  hereby  grants  to 
the  party  of  the  second  part  the  full  and  exclusive 
right  to  make,  use  and  vend  the  aforesaid  invention, 
referred  to  in  the  Letters  Patent  above  named, 
throughout  all  that  part  of  the  territory  of  the  United 
States  lying  east  of  the  Mississippi  River,  including 
the  State  of  Minnesota,  and  in  no  other  places,  to  the 
end  of  the  term  for  which  said  Letters  Patent  were 
granted,  subject,  however,  to  the  conditions  herein- 
after named. 

Second:  The  party  of  the  first  part  further  agrees  to 
protect  the  Letters  Patent  herein  referred  to,  to  pro- 
ceed at  his  expense  against  infringers  of  the  said  pat- 
ent and  to  defend  the  party  of  the  second  part  if  he 
should  be  sued  for  infringement,  if  said  alleged  in- 
fringement consists  in  the  manufacture  of  the  Rock 
Drill  herein  referred  to. 

Third:  The  party  of  the  second  part,  as  a  guaranty 
that  this  contract  will  be  carried  out  in  good  faith,  has 
paid  to  the  party  of  the  first  part  the  sum  of  one 
thousand  dollars,  the  receipt  of  which  is  hereby  ex- 
pressly acknowledged  by  the  party  of  the  first  part, 
and  the  party  of  the  second  part  further  agrees  to  pay 
to  the  party  of  the  first  part  the  sum  of  ten  dollars  for 
each  rock  drill  of  the  kind  specified  above  manufac- 
tured and  sold  by  him,  such  payments  to  be  made 
every  sixty  days  and  within  ten  days  from  the  time  of 
making  returns  as  specified  below. 

Fourth:  The  party  of  the  second  part  agrees  to 
manufacture  and  sell  not  less  than  twelve  hundred 
machines  in  any  one  year  and  agrees  to  make  full  and 
true  returns  under  oath  on  the  first  days  of  January, 
March,  May,  July,  September  and  November  of  each 
year  of  the  number  of  Rock  Drills  made  and  sold  by 
him  and  agrees  further  that  his  bpoks  of  sales  shall 


APPENDIX.  203 

be  open  at  all  reasonable  times  to  the  inspection  of  the 
party  of  the  first  part,  and  within  ten  days  after  each 
return  day  the  party  of  the  second  part  agrees  to  pay 
to  the  party  of  the  first  part  the  amount  of  royalties 
due. 

Fifth :  Upon  the  failure  of  the  party  of  the  second 
part  to  make  returns  or  to  make  payment  of  license 
fees,  as  herein  provided,  for  more  than  thirty  days 
after  the  dates  herein  named,  the  party  of  the  first 
part  may  terminate  this  license  by  serving  on  the  party 
of  the  second  part  a  written  notice  to  that  effect,  but 
the  party  of  the  second  part  shall  not  thereby  be  dis- 
charged from  any  liability  to  the  party  of  the  first  part 
for  any  license  fees  due  at  the  time  of  the  service  of 
said  notice,  and  of  the  one  thousand  dollars  paid  by 
the  party  of  the  second  part  no  part  of  such  sum  shall 
be  considered  as  being  applied  on  royalties  herein 
mentioned. 

In  Witness  Whereof,  the  parties  above  named  have 
hereunto  set  their  hands  and  seals  the  day  and  year 
first  above  written  at  Pittsburg,  in  the  County  of  Alle- 
gheny and  State  of  Pennsylvania. 

A.  B. 

Witnesses:  C.  D. 

E.  F. 
G.  H.  

SUBSCRIPTION    AGREEMENT    BEFORE    ORGANIZA- 
TION  OF  A   CORPORATION. 

Whereas,  John  Jones,  of  the  City,  County  and  State 
of  New  York,  is  the  owner  of  Letters  Patent  of  the 

United  States  No ,  dated  February  7th,  1899, 

for  Improvement  in  Sewing  Machines  ;  also  of  Letters 

Patent  of  the  United  States  No ,  dated  January 

24th,  1899,  for  an  Improvement  in  a  Pressure  Foot  for 
Sewing  Machines,  and 


204=  APPENDIX. 

Whereas,  the  said  John  Jones  proposes  to  organize 
a  corporation  under  the  General  Laws  of  the  State  of 
,  to  be  known  as  the  Jones  Manufacturing  Com- 
pany, with  a  capital  stock  of  one  hundred  thousand 
($100,000.00)  dollars,  divided  into  shares  of  a  par 
value  of  one  hundred  ($100.00)  dollars  each.  Said 
corporation  to  be  for  the  purpose  of  engaging  in  the 
manufacturing  of  machinery  and  tools  of  all  kinds  and 
especially  of  the  maufacture  of  sewing  machines  and 
pressure  feet  under  the  above-named  patents,  but  also 
to  do  any  business  within  the  general  scope  of  a  manu- 
facturing company,  and  it  is  desired  by  the  under- 
signed to  become  a  shareholder  in  the  above  corpora- 
tion ; 

Now,  Therefore  (insert  name  of  subscriber),  does 
hereby  promise  and  agree  to,  and  with  the  said  John 
Jones,  in  consideration  of  the  promises  of  the  said 
John  Jones  hereinafter  stated,  that  he  will  pay  to  the 
said  John  Jones  or  to  any  person  or  corporation  to 
whom  he  may  assign  this  agreement,  on  demand,  the 

sum  of dollars,  being  the  subscription  price  of 

shares  of  the  capital  stock  of  the  said  corpora- 
tion, or  such  part  of  said  subscription  price  as  may  be 
called  for.  The  stock  thus  paid  for  to  be  delivered  at 
the  earliest  possible  moment  after  the  organization  of 
the  company,  and  meanwhile  proper  receipts  or  scrip 
to  be  issued  to  the  undersigned, 

This  Agreement  is  conditioned  as  follows  : 

First :  The  said  John  Jones  shall  procure  other  bona 
fide  subscriptions  aggregating  in  all  not  less  than 
twenty-five  thousand  ($25,000.00)  dollars  of  the  capital 
stock  of  the  said  corporation  on  the  same  terms  as 
stated  herein. 

Second :  On  the  organization  of  said  corporation, 
the  said  John  Jones  shall  make  an  assignment  to  the 
said  Jones  Manufacturing  Company  by  which  he  shall 
set  over  to  the  said  company  the  whole  right,  title  and 


APPENDIX.  205 

interest  in  and  to  the  Letters  Patent  for  sewing  ma- 
chines and  pressure  feet  herein  named. 

Third  :  The  said  John  Jones  shall  accept  in  pay- 
ment for  the  said  patents  fifty  thousand  ($50,000.00) 
dollars  of  the  capital  stock  of  the  Jones  Manufacturing 
Company  herein  named. 

Fourth  :  The  said  John  Jones,  on  his  part,  in  con- 
sideration of  the  foregoing,  promises  to  use  his  best 
endeavors  to  obtain  the  said  twenty-five  thousand 
($25,000.00)  dollars  of  subscriptions  and  his  best 
efforts  to  perfect  the  organization  of  the  said  corpora- 
tion. 

Witness  our  hands  and  seals  this  ......  day  of  .....  , 

1899,  at  the  City,  County  and  State  of  New  York. 

........................  (Seal.) 


If  the  corporation  is  to  have  a  certain  amount 
of  preferred  stock  the  fact  should  be  set  forth 
in  the  agreement  and  the  character  of  such  pre- 
ferred stock  described,  that  is  to  say,  if  it  is  to 
be  six  per  cent,  cumulative  stock  or  six  per 
cent,  non-cumulative,  or  whatever  the  nature  of 
its  preferment  —  the  matter  should  be  distinctly 
set  out  in  the  agreement.  In  fact,  any  perti- 
nent matter  to  the  organization  should  be  clearly 
set  forth  in  the  agreement  so  that  there  can  be 
no  misunderstanding  between  the  parties.  Ob- 
viously this  agreement  will  differ  greatly  with 
different  cases,  but  its  general  tenor  will  enable 
a  skilled  person  to  use  it  to  meet  the  exigencies 
of  almost  any  case. 


206  APPENDIX. 

The  form  of  a  certificate  will  vary  somewhat 
in  different  States,  but  we  present  two  forms ; 
one  for  any  stock  and  one  providing  for  pre- 
ferred stock,  which  are  adapted  to  meet  the 
requirements  of  the  New  Jersey  Corporation 
Law,  and  these  can  easily  be  changed  to  con- 
form to  the  laws  of  other  States  or  Territories. 

Form  having  no  preferred  stock : 

CERTIFICATE  OF  INCORPORATION 
OF  THE 

(Here  insert  name  of  company.) 

First :  The  name  of  the  Corporation  is  (here  insert 
company's  name.) 

Second :  The  location  of  its  principal  office  in  the 

State  of  New  Jersey  is  at  No Street,  in  the  city 

of  Jersey  City,  County  of  Hudson.  The  name  of  the 
agent  therein  and  in  charge  thereof  upon  whom  pro- 
cess against  this  Corporation  may  be  served  is  (here 
insert  name  of  agent. ) 

Third :  The  objects  for  which,  and  for  any  of  which, 
the  Corporation  is  formed  are  to  do  any  or  all  of  the 
things  herein  set  forth,  to  the  same  extent  as  natural 
persons  might  or  could  do  and  in  any  part  of  the 
world,  to  wit :  (here  enumerate  the  special  objects  of 
the  corporation.) 

In  Furtherance  of,  and  not  in  limitation  of,  the  gen- 
eral powers  conferred  by  the  Laws  of  the  State  of 
New  Jersey,  it  is  hereby  expressly  provided  that  the 
Company  shall  have  also  the  following  powers  : 

To  manufacture,  purchase  or  otherwise  acquire,  to 
hold,  own,  mortgage,  pledge,  sell,  assign  and  transfer, 
or  otherwise  dispose  of,  to  invest,  trade,  deal  in  and 
deal  with  goods,  wares  and  merchandise  and  property 
of  every  class  and  description. 


APPENDIX.  207 

To  acquire  the  good  will,  rights  and  property,  and 
to  undertake  the  whole  or  any  part  of  the  assets  and 
liabilities,  of  any  person,  firm,  association  or  corpora- 
tion, and  to  pay  for  the  same  in  cash,  stock  of  this 
Company,  bonds  or  otherwise. 

To  apply  for,  purchase,  or  otherwise  acquire,  and  to 
hold,  own,  use,  operate,  and  to  sell,  assign,  or  to  other- 
wise dispose  of,  to  grant  licenses  in  respect  of  or 
otherwise  turn  to  account  any  and  all  inventions, 
improvements  and  processes  used  in  connection  with, 
or  secured  under  Letters  Patent  of  the  United  States 
or  elsewhere,  or  otherwise,  and  with  a  view  to  the 
working  and  development  of  the  same  to  carry  on  any 
business,  whether  manufacturing  or  otherwise,  which 
the  Corporation  may  think  calculated  directly  or  indi- 
rectly to  effectuate  these  objects. 

To  enter  into,  make,  perform  and  carry  out  con- 
tracts of  every  kind  with  any  person,  firm,  association, 
corporation,  without  limit  as  to  amount,  to  draw, 
make,  accept,  endorse,  discount,  execute  and  issue 
promissory  notes,  bills  of  exchange,  warrants,  bonds, 
debentures,  and  other  negotiable  or  transferable  in- 
struments. 

To  have  one  or  more  offices,  to  carry  on  all  or  any  of 
its  operations  in  business,  and  without  restriction  to 
the  same  extent  as  natural  persons  might  or  could  do, 
to  purchase  or  otherwise  acquire,  to  hold,  own,  to 
mortgage,  sell,  convey,  or  otherwise  dispose  of,  with- 
out limit  as  to  amount,  real  and  personal  property  of 
every  class  and  description,  in  any  state  or  territory  of 
the  United  States,  and  in  any  foreign  country  or  place. 

In  General  to  carry  on  any  other  business  in  con- 
nection therewith,  whether  manufacturing  or  other- 
wise, and  with  all  the  powers  conferred  by  the  Laws  of 
New  Jersey  on  corporations  under  the  act  hereinafter 
referred  to. 

The  duration  of  the  Corporation  shall  be  unlimited. 

Fourth  :  The  total  authorized  capital  stock  of  this 


208  APPENDIX. 

corporation  is dollars  ($ ),  divided  into 

( )  shares  of  one  hundred  dollars  ($100) 

each. 

Fifth :  The  names  of  the  incorporates  (the  post 

office  address  of  each  is  No Street,  Jersey 

City,  New  Jersey),  and  the  number  of  shares  sub- 
scribed for  by  each,  the  aggregate  of  which  ($ ) 

is  the  amount  of  capital  with  which  the  Company  will 
commence  business,  are  as  follows  : 

Name P.  O.  address No.  of  shares 

Sixth :  The  Board  of  Directors  shall  have  power, 
without  the  assent  or  vote  of  the  stockholders,  to 
make,  alter,  amend  and  rescind  the  by-laws  of  this 
corporation,  to  fix  the  amount  to  be  reserved  as  a 
working  capital,  to  authorize  and  cause  to  be  executed 
mortgages  and  liens  without  limit  as  to  amount  upon 
the  real  and  personal  property  of  this  Corporation. 

With  the  consent  in  writing  and  pursuant  to  the 
vote  of  the  holders  of  a  majority  of  the  stock  issued 
and  outstanding,  the  Directors  shall  have  power  and 
authority  to  sell,  assign,  transfer  or  otherwise  dispose 
of  the  whole  property  of  this  Corporation. 

The  Directors  shall  from  time  to  time  determine 
whether  and  to  what  extent,  and  at  what  times  and 
places  and  under  what  conditions  and  regulations  the 
accounts  and  books  of  the  Corporation,  or  any  of  them, 
shall  be  open  to  the  inspection  of  the  stockholders  ; 
and  no  stockholder  shall  have  any  right  of  inspecting 
any  account  or  book  or  document  of  the  Corporation 
except  as  conferred  by  statute  or  authorized  by  the 
Directors,  or  by  resolution  of  the  stockholders. 

The  Board  of  Directors,  in  addition  to  the  powers 
and  authorities  by  statute  and  by  the  by-laws  ex- 
pressly conferred  upon  them,  may  exercise  all  such 
powers  and  do  all  such  acts  and  things  as  may  be 
exercised  or  done  by  the  corporation,  but  subject, 
nevertheless,  to  the  provisions  of  the  statute,  of  the 
charter,  and  to  any  regulations  that  may  from  time  to 


APPENDIX.  209 

time  be  made  by  the  stockholders,  provided  that  no 
regulations  so  made  shall  invalidate  any  provisions  of 
this  charter,  or  any  prior  acts  of  the  Directors  which 
would  have  been  valid  if  such  regulations  had  not 
been  made. 

The  Corporation  may  in  its  By-laws  confer  powers 
additional  to  the  foregoing  upon  the  Directors,  and 
may  prescribe  the  number  necessary  to  constitute  a 
quorum  of  its  Board  of  Directors,  which  number  may 
be  less  than  a  majority  of  the  whole  number. 

The  Board  of  Directors  may,  by  resolution  passed 
by  a  majority  of  the  whole  Board,  designate  two  or 
more  of  their  number  to  constitute  an  Executive 
Committee,  which  Committee  shall  for  the  time  being, 
as  provided  in  said  resolution  or  in  the  By-laws  of 
said  Corporation,  have  and  exercise  all  the  powers  of 
the  Board  of  Directors  in  the  management  of  the 
business  and  affairs  of  the  Company,  and  have  power 
to  authorize  the  seal  of  the  Corporation  to  be  affixed 
to  all  papers  which  may  require  it. 

The  Directors  shall  have  power  to  hold  their  meet- 
ings, to  have  one  or  more  offices,  and  to  keep  the 
books  of  the  Corporation  (except  the  stock  and  trans- 
fer books)  outside  of  this  State,  at  such  places  as  may 
be  from  time  to  time  designated  by  them. 

It  is  the  intention  that  the  objects  specified  in  the 
third  paragraph  shall,  except  where  otherwise  ex- 
pressed in  said  paragraph,  be  nowise  limited  or 
restricted  by  reference  to  or  inference  from  the  terms 
of  any  other  clause  or  other  paragraph  in  this  Charter, 
but  that  the  objects  specified  in  each  of  the  clauses  of 
this  paragraph  shall  be  regarded  as  independent 
objects. 

The  Undersigned,  for  the  purpose  of  forming  a  Cor- 
poration in  pursuance  of  an  Act  of  the  Legislature  of 
the  State  of  New  Jersey,  entitled  "  An  Act  Concerning 
Corporations  "  (Revision  of  1896),  and  the  various  acts 
amendatory  thereof  and  supplemental  thereto,  do 


210  APPENDIX. 

make,  record  and  file  this  certificate,  and  do  respec- 
tively agree  to  take  the  number  of  shares  of  stock 
hereinbefore  set  forth,  and  accordingly  hereunto  have 
set  our  hands  and  seals. 

Dated,  Jersey  City,  N.  J., 
In  presence  of 

(Seal.) 


State  of | 

County  of j  S' 

Be  it  remembered  that  on  this day  of „  A.  D. 

eighteen  hundred  and  ninety- before  the  under- 
signed personally  appeared who  I  am  satisfied 

are the  persons  named  in  and  who  executed  the 

foregoing  certificate,  and  I  having  first  made  known 
to  them  and  each  of  them  the  contents  thereof,  they 
did  each  acknowledge  that  they  signed,  sealed  and  de- 
livered the  same  as  their  voluntary  act  and  deed. 


Received  in  the  Hudson    County,  N.   J.,   Clerk's 

Office, 189 ..,  and  recorded  in  the  Clerk's  Eecord 

No on  Page 

Clerk. 

Endorsed  "  Filed 189 .. 

GEORGE  WURTS,  Secretary  of  State." 

Under  Article  Third,  which  specifies  the  ob- 
jects of  the  corporation,  care  should  be  taken 
to  give  the  company  sufficient  scope  to  do  any 
business  it  may  ever  wish  to  do,  even  though 
the  business  is  not  contemplated  at  the  time  of 
organization. 


APPENDIX.  211 

The  form  above  given  can  be  varied  to  suit 
different  States  as  stated  above,  but  in  very- 
many  States  blanks  can  be  obtained  from  the 
Secretary  of  State  or  from  dealers  in  law  blanks, 
which  are  suitable  for  the  purpose. 


PREFERRED   AND   COMMON   STOCK. 

CERTIFICATE   OF   INCORPORATION 

10-cent  internal 

revenue  stamp  OF    THE 

cancelled. 

(Here  insert  name  of  company). 

First :  The  name  of  the  Corporation  is  the  (here  in- 
sert company's  name). 

Second  :  The  location  of  the  principal  office  in  the 

State  of  New  Jersey  is  at  No Street,  in  the 

City  of  Jersey  City,  County  of  Hudson.  The  name  of 
the  agent  therein  and  in  charge  thereof,  upon  whom 
process  against  this  corporation  may  be  served,  is- 
(herein  insert  name  of  agent). 

Third  :  The  objects  for  which  and  for  any  of  which, 
the  corporation  is  formed,  are  to  do  any  or  all  of  the 
things  herein  set  forth,  to  the  same  extent  as  natural 
persons  might  or  could  do  and  in  any  part  of  the 
world,  to  wit :  (here  enumerate  the  special  objects  of 
the  corporation.) 

In  furtherance  of,  and  not  in  limitation  of,  the  gen- 
eral powers  conferred  by  the  Laws  of  the  State  of  New 
Jersey,  it  is  hereby  expressly  provided  that  the  com- 
pany shall  have  also  the  following  powers  : 

To  do  any  or  all  of  the  things  herein  set  forth,  to- 
the  same  extent  as  natural  persons  might  or  could  do, 
and  in  any  part  of  the  world. 

To  manufacture,  purchase  or  otherwise  acquire,  to 
hold,  own,  mortgage,  pledge,  sell,  assign  and  transfer. 


212  APPENDIX. 

or  otherwise  dispose  of,  to  invent,  trade,  deal  in  and 
deal  with  goods,  wares  and  merchandise  and  property 
of  every  class  and  description. 

To  acquire  the  good  will,  rights  and  property,  and 
to  undertake  the  whole  or  any  part  of  the  assets  and 
liabilities,  of  any  person,  firm,  association  or  corpora- 
tion, and  to  pay  for  the  same  in  cash,  stock  of  this 
company,  bonds  or  otherwise. 

To  apply  for,  purchase,  or  otherwise  acquire,  and  to 
hold,  own,  use,  operate,  and  to  sell,  assign,  or  to  other- 
wise dispose  of,  to  grant  licenses  in  respect  of  or 
otherwise  turn  to  account  any  and  all  inventions,  im- 
provements, and  processes  used  in  connection  with,  or 
secured  under,  Letters  Patent  of  the  United  States  or 
elsewhere,  or  otherwise,  and  with  a  view  to  the  work- 
ing and  development  of  the  same  to  carry  on  any  busi- 
ness, whether  manufacturing  or  otherwise,  which  the 
corporation  may  think  calculated  directly  or  indirectly 
to  effectuate  these  objects. 

To  enter  into,  make,  perform  and  carry  out  con- 
tracts of  every  kind  with  any  person,  firm,  association 
or  corporation,  and,  without  limit  as  to  amount,  to 
draw,  make,  accept,  endorse,  discount,  execute  and 
issue  promissory  notes,  bills  of  exchange,  warrants, 
bonds,  debentures  and  other  negotiable  or  transferable 
instruments. 

To  have  one  or  more  offices,  to  carry  on  all  or  any 
of  its  operations  and  business,  and  without  restriction 
to  the  same  extent  as  natural  persons  might  or  could  do, 
and  to  purchase  or  otherwise  acquire,  to  hold,  own,  to 
mortgage,  sell,  convey  or  otherwise  dispose  of,  without 
limit  as  to  amount,  real  and  personal  property  of 
every  class  and  description,  in  any  State,  Territory  or 
Colony  of  the  United  States,  and  in  any  foreign  coun- 
try or  place. 

To  do  any  or  all  the  things  herein  set  forth  to  the 
same  extent  as  natural  persons  might  or  could  do, 


APPENDIX.  213 

and  in  any  part  of  the  world,  as  principals,  agents, 
contractors,  trustees  or  otherwise. 

In  general,  to  carry  on  any  other  business  in  con- 
nection therewith,  whether  manufacturing  or  other- 
wise, and  with  all  the  powers  conferred  by  the  Laws 
of  New  Jersey  upon  corporations  under  the  Act  here- 
inafter referred  to. 

The  duration  of  the  corporation  shall  be  unlimited. 

Fourth :  The  total  authorized  capital  stock  of  this 

corporation  is dollars,  ($ )  divided  into 

( )  shares  of  one  hundred  dollars  ($100) 

each. 

Of  said  stock shares  shall  be  preferred  stock, 

and  the  balance, shares,  shall  be  common  or 

general  stock. 

Said  preferred  stock  shall  entitle  the  holder  thereof 
to  receive  out  of  the  net  earnings,  and  the  company 
shall  be  bound  to  pay  a  fixed  yearly  cumulative  divi- 
dend at  the  rate  of  but  not  exceeding per 

centum,  payable before  any  dividend  shall  be  set 

apart  or  paid  on  the  common  stock.  Such  preferred 
stock  shall,  at  the  discretion  of  the  company,  be  sub- 
ject to  redemption  at  par  on 19 ,  or  on  any 

dividend  day  thereafter. 

Such  preferred  stock  may  be  issued  as  and  when 
the  Board  of  Directors  shall  determine. 

The  holders  of  preferred  stock  shall,  in  case  of 
liquidation  or  dissolution  of  the  company,  be  entitled 
to  be  paid  in  full,  before  any  amount  shall  be  paid  to 
the  holders  of  the  general  or  common  stock. 

The  holders  of  such  preferred  stock  may  choose 

of  the  Directors,  and  the  remainder  of  the 

Board  shall  be  chosen  by  the  common  or  general  stock- 
holders. 

Fifth  :  The  names  of  the  incorporators  (the  post- 
office  address  of  each  is  No Street,  Jersey 


APPENDIX. 


City,  N.  J.),  and  the  number  of  shares  subscribed  for 
by  each,   the   aggregate   of  which   ($  ......  )   is  the 

amount  of  capital  with  which  the  Company  will  com- 
mence business,  are  as  follows  : 

Name  P.  O.  Address        Number  of  shares 


Sixth :  The  Board  of  Directors  shall  have  power, 
without  the  assent  or  vote  of  the  stockholders,  to  make, 
alter,  amend  and  rescind  the  By-Laws  of  this  Corpora- 
tion, to  fix  the  amount  to  be  reserved  as  working  cap- 
ital, to  authorize  and  cause  to  be  executed  mortgages 
and  liens  without  limit  as  to  amount  upon  the  real  and 
personal  property  of  this  Corporation. 

With  the  consent  in  writing  and  pursuant  to  the 
vote  of  the  holders  of  a  majority  of  the  stock  issued 
and  outstanding,  the  Directors  shall  have  power  and 
authority  to  sell,  assign,  transfer  or  otherwise  dispose 
of  the  whole  property  of  this  Corporation. 

The  Directors  shall  from  time  to  time  determine 
whether  and  to  what  extent,  and  at  what  times  and 
places  and  under  what  conditions  and  regulations,  the 
accounts  and  books  of  the  Corporation,  or  any  of  them, 
shall  be  open  to  the  inspection  of  the  stockholders ; 
and  no  stockholder  shall  have  any  right  of  inspecting 
any  account  or  book  or  document  of  the  Corporation, 
except  as  conferred  by  statute  or  authorized  by  the 
Directors,  or  by  a  resolution  of  the  stockholders. 

The  Board  of  Directors,  in  addition  to  the  powers 
and  authorities  by  statute  and  by  the  By-Laws  ex- 
pressly conferred  upon  them,  may  exercise  all  such 
powers  and  do  all  such  acts  and  things  as  may  be  ex- 
ercised or  done  by  the  Corporation,  but  subject,  nev- 
ertheless, to  the  provisions  of  the  statute,  of  the 
Charter,  and  to  any  regulations  that  may  from  time  to 
time  be  made  by  the  stockholders,  provided  that  no 
regulations  so  made  shall  invalidate  any  provisions  of 
this  Charter,  or  any  prior  acts  of  the  Directors  which 


APPENDIX.  215 

would  have  been  valid  if  such  regulations  had  not 
been  made. 

The  Corporation  may  in  its  By-Laws  confer  powers 
additional  to  the  foregoing  upon  the  Directors,  and 
may  prescribe  the  number  necessary  to  constitute  a 
quorum  of  its  Board  of  Directors,  which  number  may 
be  less  than  a  majority  of  the  whole  number. 

The  Board  of  Directors  may,  by  resolution  passed 
by  a  majority  of  the  whole  Board,  designate  two  or 
more  of  their  number  to  constitute  an  Executive  Com- 
mittee, which  Committee  shall  for  the  time  being,  as 
provided  in  said  resolution  or  in  the  By-Laws  of  said 
Corporation,  have  and  exercise  all  the  powers  of  the 
Board  of  Directors  in  the  management  of  the  business 
and  affairs  of  the  Company,  and  have  power  to  author- 
ize the  seal  of  the  Corporation  to  be  affixed  to  all 
papers  which  may  require  it. 

Neither  the  Directors  nor  the  members  of  the  Ex- 
ecutive Committee  nor  the  President  nor  Vice-Presi- 
dent shall  be  subject  to  removal  during  their  respec- 
tive terms  of  office  except  for  cause,  nor  shall  their 
terms  of  office  be  diminished  during  their  tenure. 

The  Directors  shall  have  power  to  hold  their  meet- 
ings, to  have  one  or  more  offices,  and  to  keep  the 
books  of  the  Corporation  (except  the  stock  and  trans- 
fer books)  outside  of  this  State,  at  such  places  as  may 
be  from  time  to  time  designated  by  them. 

It  is  the  intention  that  the  objects  specified  in  the 
third  paragraph  shall,  except  where  otherwise  ex- 
pressed in  said  paragraph,  be  nowise  limited  or  re- 
stricted by  reference  to  or  inference  from  the  terms 
of  any  other  clause  or  other  paragraph  in  this  Char- 
ter, but  that  the  objects  specified  in  each  of  the  clauses 
of  this  paragraph  shall  be  regarded  as  independent 
objects. 

We,  the  undersigned,  for  the  purpose  of  forming  a 
Corporation  in  pursuance  of  an  Act  of  the  Legislature 
of  the  State  of  New  Jersey,  entitled  "  An  Act  Concern- 


216  APPENDIX. 

ing  Corporations  "  (Revision  of  1896),  and  the  various 
acts  amendatory  thereof  and  supplemental  thereto,  do 
make,  record  and  file  this  certificate,  and  do  respec- 
tively agree  to  take  the  number  of  shares  of  stock 
hereinbefore  set  forth,  and  accordingly  have  hereunto 
set  our  hands  and  seals. 
Dated  Jersey  City,  N.  J., 
In  the  presence  of 


(Seal.) 


State  of 
County  of 

Be  it  remembered  that  on  this day  of 

A.  D before  the  undersigned  personally  ap- 
peared   who  I  am  satisfied  are the  per- 
sons named  in  and  who  executed  the  foregoing  cer- 
tificate, and  I  having  first  made  known  to  them,  and 
each  of  them,  the  contents  thereof,  they  did  each  ac- 
knowledge that  they  signed,  sealed  and  delivered  the 
same  as  their  voluntary  act  and  deed. 

10-cent  Internal 

revenue  stamp 

cancelled. 

Received  in  the  Hudson  County,  N.   J.,  Clerk's 

Office, 1 , and  recorded  in  Clerk's 

Record  No on  Page 

Clerk. 

Endorsed  "  Filed 

Secretary  of  State." 

If  the  stock  is  to  be  non-cumulative  the  word 
"non"  can  be  inserted  before  "  cumulative." 

ASSIGNMENT    OF   SUBSCRIPTION. 

Know  all  men  by  these  presents, 

That  I, in  consideration  of  One 


APPENDIX.  217 

Dollar,  lawful  money  of  the  United  States,  to  me  paid 
before  the  ensealing  and  delivery  of  these  presents, 
the  receipt  whereof  is  hereby  acknowledged,  and  for 
other  good  and  valuable  considerations,  have  sold,  as- 
signed,transferred  and  set  over,  and  by  these  presents  do 

sell,  assign,  transfer  and  set  over  unto my  right, 

title  and  interest  as  a  subscriber  to  and  an  incorpor- 

ator  of  the Company,  a  corporation  organized 

under  the  Laws  of  the  State  of  New  Jersey,  to  the  ex- 
tent of shares,  and  I  do  hereby  request  and 

direct  the  said  Company  to  issue  the  certificate  for 

said shares  to  and  in  the  name  of  said 

or  such  other  person  as  he  may  name. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and 

seal  this day  of ,  189 . . 

[L.S.] 
Sealed  and  delivered  in  the  presence  of     


219 


IKDEX. 


ABANDONMENT  PAGE 

of  application , 79 

of  experiments 47 

of  invention 79 

of  invention,  by  disclaimer 71 

of  invention,  by  express  declaration 79 

revival  of  application 79 

ACCIDENT 

causing  reissuable  faults 75 

ADDITION 

to  composition  of  matter 92-94= 

to  mechanical  patent 92 

AGGREGATION 

distinguished  from  combination 41 

not  patentable 40 

ANTIQUITY  OF  PARTS 

never  negatives  novelty  of  combinations 20 

APPEALS 

from  examiners  to  board  of  examiners-in-chief . . .    61-62 
from  board  of  examiners-in-chief  to  Commissioner 

of  Patents 61-62 

from  Commissioner  to  the  Court  of  Appeals  of 

District  of  Columbia 61-63 

interferences 70 

APPLICATION 

abandonment  of 79 

amendments  of 59 

as  constructive  reduction  to  practice 68 


220  INDEX. 

APPLICATION  PAGE 

examination  of 57-58 

fees  due  upon  filing 190 

final  fee  for  letters  patent 60 

forfeited 80 

for  reissues   77 

importance  of  early 67 

importance  of  proper  preparation  of 51-52 

important  statutes  relating  to 53 

more  than  two  years  after  sale  or  public  use 47 

of  executors  or  administrators 37 

reexamination  of 59 

rejection  of 51-59 

what  constitutes  a  complete 51-56 

ART  OB  PROCESS 

patent  law  meaning  of  the  word 23 

when  included  in  same  application  with  instrumen- 
talities       23 

ASSIGNMENTS 

acknowledgment  of 128 

authenticated,  how 128 

of  inventions 130 

of  patents 130 

recording  of 129-130 

right  to  make  by  undivided  interests 135 

ATTORNEYS 

importance  of  employing  good 52 

BROADENED  REISSUES 

when  too  late  to  apply  for 75 

BURDEN  OP  PROOF 

on  questions  of  prior  use 47 

CAVEATS 

how  to  secure  substantially  the  same  benefits 29 

merely  evidence 29 

of  little  value 27 

requirements 30 


INDEX.  221 

CAVEATS  PAGE 

term  of , 27 

when  of  advantage  to  file 29 

CLAIMS 

for  an  art 24 

for  combinations 92 

function  of 57 

infringing,  and  not  in  same  letters  patent 84 

insufficient 51 

COMBINATION 

claim  for,  not  to  be  broadened 92 

dissolved  by  omission  of  any  one  element 92 

distinguished  from  aggregation 41 

of  old  devices,  having  new  mode  of  operation 20 

patentability  of 20 

COMMISSIONER  OF  PATENTS 

appeals  to,  from  board  of  examiners-in-chief 61-62 

appeals  from,  to  Court  of  Appeals  of  District  of 
Columbia 61-63 

COMPOSITIONS  OF  MATTER 

claims  for 94 

defined 22 

infringement. 94 

requirements  in  specification 22 

COPYRIGHTS 

author  and  his  assigns  right  to  print  and  vend 109 

copy  of  record 115 

countries  having  copyright  relations 126 

definition  of  as  to  engraving,  cut,  print 110 

entry  of  copyright 115 

exclusive  right  of  authors  to  dramatize  and  translate.  110 

failure  to  deposit 117 

false  claim  for  and  penalty  for 119 

fees  for 115-116 

general  issue 124 

importation  not  permitted.andexceptions  thereto  113-114 


222  INDEX. 

COPYEIGHTS  PAGE 

infringement 121-122 

injunction 123 

new  editions  of  foreign  books  may  be 117 

newspapers  and  magazines  may  be  imported 113 

no  action  after  two  years 124 

notice  of 118 

notice  of  on  decorative  articles 119 

penalties 121-122 

printed  from  type  set  in  the  United  States 112 

printing  or  importing  without  permission 113-116 

postmaster  to  give  receipt 118 

separate  entries 125 

term  of 110 

title  or  description  to  obtain Ill 

two  copies  to  be  deposited 112 

when  to  deposit  copies  of  subsequent  editions 117 

who  to  prevent  importation 116 

CONTKIBUTION 

between  joint  inventors 34 

COKPOKATIONS 

advantages  of 164 

advantages  of  retaining  control  in 169 

as  defendants  in  patent  cases 90 

bonds  of 179 

difference  between,  and  individual 164 

directors  in 169 

form  of  assignment  of  patents  to 197 

how  to  interest 172 

how  to  organize 166 

illustration  of  how  to  organize 166-167 

introduction  and  sale  of  patented  inventions  by 164 

nature  of  preferred  stock  in 175 

preferred  stock  in 175 

prospectus  of 172 

selling  stock  of 171 

states  having  liberal  laws  relating  to 166 


INDEX.  223 

CORPORATIONS  PAGE 

stockholders  in 169 

subscription  lists  of  180 

DATE 

of  invention,  in  interference  actions 67 

DESCRIPTION 

fullness  of 56 

DESIGN 

duration  of 25 

distinction  between  and  structural  patents 25 

fees  for 190 

how  not  infringed 25 

relate  to  what 25 

what  are  subjects  of 24 

DISCOVERY 

patent  law  meaning  of  the  word 42 

DISCLAIMERS 

defined 71 

object  of 71 

DOUBLE  USE 

not  invention 39 

DRAWINGS 

constitute  part  of  letters  patent 51-56 

EMPLOYER  AND  EMPLOYEE 

employee  must  make  the  application 36 

implied  license  to 36 

may  employ  one  to  invent 36 

EQUIVALENTS 

among  ingredients  of  compositions  of  matter 94 

defined 85 

EXAMINATION 

of  applications 57 

EXAMINERS-IN-CHIEF 

appeals  to  board  of 61-62 

who  composes 62 


224  INDEX. 

EXECUTORS  AND  ADMINISTRATORS                        PAGE 
applying  for  letters  patent 37 

EXPERIMENTS 

do  not  amount  to  prior  or  public  use 48 

EXPERIMENTAL  USE 

distinguished  from  "  public  use  " 48 

what  constitutes 48 

FAULTS 

which  cause  patents  to  be  reissuable 71 

FEES 

various  government 190 

FORMS 

assignment  of  entire  interest  before  issue  of  patent.  196 

assignment  of  entire  interest  to  corporation 197 

assignment  of  entire  interest  in  letters  patent 197 

assignment  of  application  after  filing 198 

assignment  of  subscription  in  corporation 216 

assignment  of  an  undivided  interest  in  letters  patent  199 

certificate  of  incorporation 211 

grant  after  issue  of  patent 200 

of  license  with  royalty 201 

simple  form  of  shop  license 201 

subscription  agreement  before  organization  of  cor- 
poration   203 

FOREIGN  COUNTRY 

knowledge  of  use  in,  prior  to  patentee's  invention. . .    47 

FOREIGN  PATENTS 

expenses  connected  witti 137 

how  governed  in  relation  to . .  137 

instances  of  valuable 138 

when  advantageous  to  take  out 138 

GRANTS 

difference  between  and  assignment 132 

of  rights  under  letters  patent 132 


INDEX.  225 

HOW  TO  INVENT  PAGE 

as  to  discrimination 149 

by  observation 149 

invention  accidentally  discovered 149 

not  necessary  to  be  in  a  certain  line 149 

remarks 140 

when  too  expensive 149 

IMPROVEMENT 

a  subject  of  a  patent 23 

defined 22 

INFRINGEMENT 

after  patent  has  expired 89 

by  a  single  claim 84 

by  assignor 91 

by  carriers 92 

by  government 90 

by  private  corporations 90 

by  public  corporations 90 

defined 82 

extends  only  to  United  States  and  Territories 89 

intent  as  a  feature  of 87 

joint  owners  of  patents 91 

not  until  patent  issues 88 

number  of  persons  may  be  guilty  of 86 

of  art 93 

of  composition 94 

of  design 94 

of  manufacture 93 

remedies 94 

IMPERATIVENESS 

a  cause  of  reissuability 74 

INJUNCTION 

for  infringement 95 

preliminary  not  granted  until  patent  sustained 95 

INTERFERENCES 

defined 64 

evidence  of  invention  in. .                                              ,  68 


226  INDEX. 

INTEEFEEENCES  PAGE 

in  what  cases 64-65 

nature  of 67 

preliminary  questions  must  be  settled  before  dec- 
laration of 66 

INVENTOES 

introduction  and  sale  of  patented  inventions  by 151 

must  make  application  in  United  States 31 

prolific 155 

should  not  conceal  anything 57 

women  as , 32 

INVENTION 

absent  from  product  of  mechanical  skill 39 

defined , ; 42 

determined  to  some  extent  by  negative  rules 41 

distinction  between  invention  and  mechanical  skill..  39 

may  be  owned  by  other  than  the  inventor 32 

mere  aggregation  not 40 

mere  combination  of  old  devices  having  no  new  mode 

of  operation  not 20 

mere  enlargement  not 85 

mere  improvement  in  workmanship  not 38 

mere  substitution  of  equivalents  not 85 

mere  substitution  of  superior  materials  not 42 

necessary  to  patentability 42 

new  use  of  old  process  or  thing  not 39 

what  constitutes 42 

when  workman  or  mechanic  may  produce  an 35 

INVENTIONS 

as  a  means  for  avoiding  destructive  competition. . .      18 

as  a  means  to  wealth 17 

how  to  approximate  the  value  of 17 

how  to  produce  valuable 140 

importance  of  proper  protection 19 

important  statutes  relating  to 53 

introduction  of 151 

sale  of  patented. 151 


INDEX.  227 

INVENTIONS  PAGE 

successful 17 

to  be  valuable  should  be  patented 18 

value  of  little 16 

what  are  not  patentable 43 

what  are  patentable 20 

INTRODUCTION  OF  PATENTED  INVENTIONS 

advantage  of  working  device 153 

advice  as  regards  the 151 

by  advertising 152-160 

by  a  business 152 

by  joint-stock  companies  or  corporations 164 

by  manufacturers 160 

by  prolific  inventor. 155 

by  third  party 159 

by  territorial  grants 157 

depends  on  circumstances 151 

depends  on  intention  of  inventor 151 

first  step  necessary  to 151 

how  to  interest  others 154 

must  have  something  worth  introducing 151 

must  not  be  discouraged  in 154 

what  some  inventors  have  to  contend  with 154 

when  relating  to  established  business 156 

JOINT  PATENT 

for  sole  invention  voids  the  patent 34 

JOINT  PATENTEES 

are  tenants  in  common 91 

what  constitutes 34 

JOINT-STOCK  COMPANIES 

introduction  and  sale  of  patented  inventions  by. ...  164 
(See  Corporations.) 

KNOWLEDGE 

in  foreign  country 47 

inventor  presumed  to  have,  of  state  of  the  art 40 


228  INDEX. 

LABELS  PAGE 

defined 106 

fee  for  registering. .  * 107 

relates  to  what 106 

LAPSE  OP  TIME 

before  applying  for  reissue 75 

LETTEES  PATENT 

claims  of 57-84 

constructive  notice  to  all  persons 40 

duration  of 1-53 

LICENSES 

defined 132 

duration  of 133 

implied 36-133 

written  or  oral 132 

MANUFACTURER 

introduction  of  patented  inventions  by 160 

MACHINE 

defined 20 

how  claimed 21 

MANUFACTURE 

infringement  of < 93 

patent  law  meaning  of  the  word 21 

MARKING 

effect  of  not 87 

patented  article  should  be 87 

process  or  art ; . . . , 88 

MARKETING  BEFORE  ISSUE  OF  PATENT 

bearing  of  foreign  patents  on 88 

MORTGAGE 

defined 132 

recording  of 132 

NEW  USE 

of  old  thing  not  invention 39 


INDEX.  229 

NOVELTY  PAGE 

as  affected  by  prior  abandoned  experiments 47 

as  affecting  patentability 20 

tests  of. 42 

PATENTABILITY 

prerequisites  of 54: 

PATENTEES 

a  few  famous 7 

PATENTS 

as  a  blessing  to  the  public 10 

consideration  given  for 2-6 

creatures  of  statute 3 

duration  of 1-53 

effect  on  trade 7 

importance  of 5 

issued  for  United  States  and  Territories 89 

may  be  owned  by  others  than  inventor 32 

modern  application  of  the  term 2 

not  a  monopoly 2 

notice  to  public 40 

origin  and  nature 1-2 

undivided  interests  in 134 

value  of 16 

who  may  obtain 31 

PATENT  OFFICE  EMPLOYEES 

cannot  obtain  patents 37 

PEINCIPLES 

not  patentable 21 

PRIOR  ABANDONED  EXPERIMENTS 

as  affecting  novelty 47 

PBINTS 

defined 106 

distinguished 106 

fee  for 107 

PRIOR  USE 

burden  of  proof  on  who  alleges 47 


230  INDEX. 

PBIOB  USE  PAGE 

in  foreign  country  when  negatives  novelty 47 

in  this  country  negatives  novelty 46 

PEIOE  FEINTED  PUBLICATION 

negatives  novelty 47-54 

PBIOBITY 

questions  of,  between  rival  inventors,  how  settled . .  64 

PEOCESSES 

claims  for 24 

patent  law  meaning  of  the  word 23 

PUBLIC  USE 

for  more  than  two  years  before  application 47 

what  constitutes 48-49 

PEOMOTEBS 

a  distinct  application  of  term 182 

introduction  and  sale  of  inventions  by 182 

uses  of 184 

BEDUCTION  TO  PBACTICE 

importance  of 68 

BECOEDING 

of  assignments 129 

of  grants 129 

BEISSUES 

applications  for 77 

broadened 75 

delay  in  applying  for 75 

SALE  OF  PATENTED  INVENTIONS 

advantage  of  working  device 153 

advice  as  regards  the 151 

as  to  improvements 155 

by  advertising 152-160 

by  joint-stock  companies  and  corporations 164 

by  prolific  inventors 155 

by  royalties 160 

by  third  party 150 

depends  on  what  to  effect 151 


INDEX.  231 

SALE  OF  PATENTED  INVENTIONS  PAGE 

first  step  necessary  to 153 

false  sales 161 

how  to  interest  others  in  the 153 

if  inventor  has  no  money,  how  to  effect 152-166 

must  have  something 151 

must  not  be  discouraged 154 

of  patent  complete 158 

territorial  rights 159 

SIGNATUBES 

to  drawings 54 

SKILL,  MECHANICAL 

meaning  of  the  phrase 39 

SOLE  INVENTION 

distinguished  from  joint  invention 34 

not  inconsistent  with  received  mechanical  assistance    34 
not  inconsistent  with  specially  sought  information..    35 

STATE  OF  THE  ART 

fees  for  copies  of  patents  144 

importance  of  examination 143 

libraries  for  state  of  the  art 142 

subclass  of  patents 142 

STOCKHOLDERS  IN  CORPORATIONS 

rights  of 169 

SUBSTITUTION 

as  affecting  infringement 85 

SUGGESTIONS  TO  INVENTORS 

distinguished  from  joint  invention 34 

TITLE 

by  assignment 128 

TRADE-MARKS 

characteristics  of 97 

defined 97 

differ  from  patents  101 

geographical  name  as 100 

good  only  on  certain  class  of  goods 102 


I  MM  OF  <   U  .mWNM    M     ARY 

LEY 

i  to  desk  from  which  lx>rro^i. 
t  ,<  M ,k  is  DUE  on  the  last  date  stamf  I  below. 


REC'D  LD 

DEC  3     1 


REC'D  L 

MAY  15  1359 
AU6201982 

AUG     5  1982 


U.C.BERKELEY  LIBRARIES 


•: 


232  INDEX. 

TEADE-MAEKS  PAGE 

illustrations  of  good  and  of  bad 97-98-99 

interfering 103 

object  of  registration 101 

owner  may  sue  in  State  courts  for  infringement  of   97-100 

registration  of 100 

registration  of  confers  no  additional  right 100 

requirements  of 101 

value  of 104 

what  constitutes  infringement  of 105 

UTILITY 

to  what  extent  necessary  to  patentability 20 

WAEEANTY 

of  title 134 

WHAT  TO  INVENT 

as  to  complicated  means 146 

as  to  demand 145 

as  to  simplifying  a  well-known  process  or  machine..  146 

cannot  always  tell  value  of  invention 147 

importance  of  demand  in  knowing ....  147 

importance  of  little  things 145 

invention  usually  complicated  at  first 146 

machinery  or  means  to  cheapen  some  staple  article  145 

value  of  designs 147 

when  a  better  article  is  produced 145 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 
BERKELEY 

Return  to  desk  from  which  borrowed. 
This  book  is  DUE  on  the  last  date  stamped  below. 


6Apr'53Vl 


REC'D  LD 

DEC  3     1956 


REG'D  LD 

MAY  15  1959 
AUG201982 

RETD     AUG     5  1982 


LD  21-100m-9,'47(A5702sl6)476 


U.  C.  BERKELEY  LIBRARIES 


'•** 
3 


m 


